THE ARMY LAWYER Headquarters, Department of the Army

October 2013

ARTICLES

The Organization Legal Advisor: A Primer Colonel Brian H. Brady

Acquisition and Cross-Servicing Agreements in an Era of Fiscal Austerity Major Ryan A. Howard

TJAGLCS FEATURES

Lore of the Corps

From Cowboy and Tribal Lawyer to Judge Advocate and Secretary of War: The Remarkable Career of Patrick J. Hurley

BOOK REVIEWS

Little America: The War Within the War for Afghanistan Reviewed by Major Temi Anderson

CLE NEWS

CURRENT MATERIALS OF INTERESTS

Department of the Army Pamphlet 27-50-485

Editor, Captain Marcia Reyes Steward Assistant Editor, Major Keirsten H. Kennedy Technical Editor, Charles J. Strong

The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly Authors should revise their own writing before submitting it for by The Judge Advocate General’s Legal Center and School, Charlottesville, publication, to ensure both accuracy and readability. The style guidance in Virginia, for the official use of Army lawyers in the performance of their paragraph 1-36 of Army Regulation 25-50, Preparing and Managing legal responsibilities. Individual paid subscriptions to The Army Lawyer are Correspondence, is extremely helpful. Good writing for The Army Lawyer available for $45.00 each ($63.00 foreign) per year, periodical postage paid at is concise, organized, and right to the point. It favors short sentences over Charlottesville, Virginia, and additional mailing offices (see subscription form long and active voice over passive. The proper length of an article for The on the inside back cover). POSTMASTER: Send any address changes to The Army Lawyer is “long enough to get the information across to the reader, Judge Advocate General’s Legal Center and School, 600 Massie Road, and not one page longer.” ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors in the articles do not necessarily reflect the view of Other useful guidance may be found in Strunk and White, The Elements The Judge Advocate General or the Department of the Army. Masculine or of Style, and the Texas Law Review, Manual on Usage & Style. Authors feminine pronouns appearing in this pamphlet refer to both genders unless the should follow The Bluebook: A Uniform System of Citation (19th ed. 2010) context indicates another use. and the Military Citation Guide (TJAGLCS, 17th ed. 2012). No compensation can be paid for articles. The Editor and Assistant Editor thank the Adjunct Editors for their invaluable assistance. The Board of Adjunct Editors consists of highly The Army Lawyer articles are indexed in the Index to Legal Periodicals, qualified Reserve officers selected for their demonstrated academic excellence the Current Law Index, the Legal Resources Index, and the Index to U.S. and legal research and writing skills. Prospective candidates may send Government Periodicals. The Army Lawyer is also available in the Judge Microsoft Word versions of their resumes, detailing relevant experience, to Advocate General’s Corps electronic reference library and can be accessed the Technical Editor at [email protected]. on the World Wide Web by registered users at http:// www.jagcnet.army.mil/ArmyLawyer and at the Library of Congress The Editorial Board of The Army Lawyer includes the Chair, website at http://www.loc.gov/rr/frd/MilitaryLaw/Army_Lawyer.html. Administrative and Civil Law Department; and the Director, Professional Writing Program. The Editorial Board evaluates all material submitted for Address changes for official channels distribution: Provide changes to publication, the decisions of which are subject to final approval by the Dean, the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center The Judge Advocate General’s School, U.S. Army. and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension The Army Lawyer accepts articles that are useful and informative to Army 3396) or electronic mail to [email protected]. lawyers. This includes any subset of Army lawyers, from new legal assistance attorneys to staff judge advocates and military judges. The Army Lawyer Articles may be cited as: [author’s name], [article title], ARMY LAW., strives to cover topics that come up recurrently and are of interest to the Army [date], at [first page of article], [pincite]. JAG Corps. Prospective authors should search recent issues of The Army Lawyer to see if their topics have been covered recently.

Lore of the Corps

From Cowboy and Tribal Lawyer to Judge Advocate and Secretary of War: The Remarkable Career of Patrick J. Hurley ...... 1

Articles

The North Atlantic Treaty Organization Legal Advisor: A Primer Colonel Brian H. Brady ...... 4

Acquisition and Cross-Servicing Agreements in an Era of Fiscal Austerity Major Ryan A. Howard ...... 26

Book Reviews

Little America: The War Within the War for Afghanistan Reviewed by Major Temi Anderson ...... 38

CLE News ...... 43

Current Materials of Interest ...... 48

Individual Paid Subscriptions to The Army Lawyer ...... Inside Back Cover

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485

Lore of the Corps From Cowboy and Tribal Lawyer to Judge Advocate and Secretary of War:

The Remarkable Career of Patrick J. Hurley

Fred L. Borch Regimental Historian & Archivist

One of the most interesting judge advocates in history Hurley was still working as a cowhand—sometimes for was Patrick J. Hurley, who worked as a coal miner, mule as little as $1.00 a day5—when a ranch owner who had taken driver, and cowboy before becoming a lawyer and entering a liking to him arranged for Hurley to attend Indian the Judge Advocate General’s Department (JAGD) in 1917. University (today’s Bacone College). He excelled as a After serving with great distinction in Europe in World War student and obtained his A.B. in 1905. Hurley then took a I, Hurley left active duty. He remained in the Army Reserve job as an office clerk and began studying law in his spare and, during World War II, attained the rank of major time. His intent was to sit for the Indian Territory bar general. But Hurley also served in our Army as Secretary of examination when he felt he had studied enough law to pass. War under President Herbert Hoover and served as U.S. In 1907, however, friends in Muskogee convinced Hurley Ambassador to China in the administrations of Presidents that he should obtain a law degree. As a result, Pat Hurley Franklin D. Roosevelt and Harry S. Truman. What follows journeyed to Washington, D.C., enrolled in National is the story of a truly remarkable Army lawyer. University, and obtained his LL.B. in 1908. He was just twenty-five years old. Born in the Choctaw Nation, Indian Territory (now Oklahoma), in January 1883, Patrick J. Hurley grew up in Returning to Oklahoma, he passed the Oklahoma bar poverty. His father worked in the coal fields as a day laborer and built a successful practice in Tulsa (oil had been for $2.10 a day; young Pat joined his father in the mines discovered there in 1901). In 1911, President William H. when he was eleven years old. For a nine-and-one-half hour Taft appointed Hurley’s boyhood friend, Victor Locke, as day, the boy received seventy-five cents.1 the Principal Chief of the Choctaws. The new chief now appointed Patrick J. Hurley, then serving as president of the Later, when the coal mines closed for a time and young Tulsa Bar Association, as the new National Attorney for the Hurley was without work, he spent his days in the company Choctaw Nation of Indians, at an annual salary of $6,000.6 of Native American members of the Choctaw Nation who, Since the average American earned $750 a year during this along with the Creeks and Cherokees, were the most era, this was a huge amount of money for a twenty-eight prominent Indian tribes in the territory. His friendship with year old Oklahoma lawyer.7 Choctaw Victor Locke would open professional doors after Hurley became a lawyer. But first the teenager returned to At the time, there were about 28,000 men, women, and the coal mines, where he worked as a mule skinner, “driving children in the Choctaw Nation, and real estate held the animals as they hauled cars full of coal out of the pits.”2 communally by the tribe was worth as much as $160 million. Hurley subsequently left the mines to work as a cowboy, Since the most valuable item in that tribal property was coal “herding and feeding cattle belonging to a local butcher.”3 and asphalt lands, Hurley’s job was to ensure that any While punching cattle, Hurley teamed up with a cowboy contracts involving the lease or sale of those lands were fair named Will Rogers—the same Will Rogers who would to the Choctaw and that any proceeds were fairly distributed achieve national fame as an actor and humorist.4 The two to members of the Choctaw Nation. Unscrupulous men formed a lifelong friendship that only ended with businessmen and politicians had engaged in “systematic, Rogers’ untimely death. planned fraud” against the tribe for years, mostly by making contracts with individual Indians that purported to dispose of property held communally by the tribe.8 Once Hurley became the Choctaw’s attorney, however, he successfully 1 DON LOHBECK, PATRICK J. HURLEY 28 (1956). fought against these and other fraudulent contracts in court. He also protected the rights of the Choctaws under various 2 Id. at 30. treaties with the United States, insisting that the government

3 Id.

4 Williams Penn Adair “Will” Rogers (1879–1935) was one of America’s 5 LOHBECK, supra note 1, at 33. best known celebrities in the 1920s and 1930s. He was a vaudeville performer, humorist, social commentator, and film actor. He had a 6 Id. at 45. newspaper column that was read daily by forty million people. He is still remembered today for his timeless and entertaining quotes (“I don’t make 7 Meryl Baer, The History of American Income, http://www.ehow.com/info_ jokes. I just watch the government and report the facts.”). For more on 7769323_history-american-income.html (last visited Oct. 15, 2013). Rogers, see BEN YAGODA, WILL ROGERS: A BIOGRAPHY (2000). 8 LOHBECK, supra note 1, at 56, 60.

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had a legal responsibility to protect Indian resources.9 the Silver Star medal when that decoration was created by Hurley was so successful that he could have remained as the the Army in 1932.16 Choctaw Attorney for as long as he desired. After the Armistice, LTC Hurley was appointed by In May 1917, however, one month after Congress General John J. Pershing to be the Judge Advocate, 6th declared war on and the Central Powers, Hurley Army Corps. In this position, he successfully negotiated an resigned and travelled to Washington, D.C., where he agreement with the Grand Duchy of Luxemburg for the use accepted a commission as a captain (CPT) in the JAGD. of its roads and railroads by U.S. troops as they marched Hurley was no stranger to soldiering, having served as a across that country on their way to occupy Germany. private, corporal, sergeant, lieutenant and captain in the Originally, General John J. Pershing had planned to simply Muskogee (Oklahoma) Militia from 1903 to 1916 and in the requisition the necessary trains, and use Luxemburg roads as Oklahoma National Guard from 1916 to 1917; in this last if Luxemburg were occupied enemy territory on the theory position, Hurley served on the U.S.-Mexican border with that, as Germany had marched into Luxemburg and occupied Guard personnel who were tasked with preventing Mexican it from 1914 to 1918, the Grand Duchy could be treated as if warlord Pancho Villa from conducting raids into the United it were conquered enemy territory. Hurley pointed out, States.10 Now, however, Hurley was going to soldier as an however, that regardless of Germany’s actions, Luxemburg Army lawyer. still had a neutral status under the 1907 Hague Convention and that Pershing’s proposed course of action would violate After arriving in Washington, D.C., CPT Hurley international law. After Brigadier General Walter A. initially helped in the preparation of administration of the Bethel,17 the senior judge advocate on Pershing’s staff, Selective Service Act of 1917. After some months, he tired admitted that Hurley was correct, General Pershing tasked of working in “a small office in the grim War, State & LTC Hurley with arriving at a diplomatic solution. The Building,”11 and pestered Judge Advocate General Enoch result was an agreement in which the Americans agreed to Crowder to permit him to transfer to combat duty. Finally, pay for the use of railroad cars and pay for the upkeep of in April 1918, now Major (MAJ) Hurley “went overseas roads used by U.S. troops. They also agreed to pay rent for with the first detachment of American artillery to go to property used for military purposes, including housing used .”12 He subsequently served as the Judge Advocate, to billet American Soldiers.18 At the end of his service in Army Artillery, First Army, where he not only prosecuted a Luxemburg, LTC Hurley was awarded the Distinguished number of courts-martial,13 but also found time to assume Service Medal, with the following citation: the duties of the Army Artillery’s Acting Adjutant General and Acting Inspector General. Assigned as Judge Advocate, Army Artillery, First Army, he rendered services While wearing crossed-pen-and-sword insignia, Hurley of marked ability, performing, in addition took part in the battles of Aisne-Marne, St. Mihiel, and to his manifold duties, the duties of Meuse-Argonne. During the last battle, the newly promoted adjutant general and inspector general. lieutenant colonel (LTC) was cited “for distinguished and Later, as Judge Advocate General (sic) of exceptional gallantry at Forest de Woevre on 10 November the Sixth Army Corps, he ably conducted 1918.”14 The following day—the last day of World War I— the negotiations arising between the LTC Hurley was commended for his gallantry in action American Expeditionary Forces and the while conducting a reconnaissance under heavy enemy fire Grand Duchy of Luxemburg wherein he near Louppy, France.”15 This meant that Hurley was issued displayed sound judgment, marked zeal and a keen perception of existing conditions. He has rendered services of 9 Id. at 57. material worth to the American Expeditionary Forces.19 10 Id. at 66, 69.

11 Id. at 70. Known today as the “Executive Office Building;” it is located After leaving active duty in May 1919, Hurley entered near the White House in Washington, D.C. Id. private practice, but returned in March 1929 to be Assistant Secretary of War under President Herbert Hoover. When 12 Id. at 71. the sitting Secretary of War died in November, Hoover

13 As a major, Hurley served as the prosecutor in United States v. Buckner, in which an African-American Soldier was prosecuted for raping a French civilian. See Fred L. Borch, Anatomy of a Court-Martial: The Trial and 16 Id. Execution of Private William Buckner in World War I, ARMY LAW., Oct. 2011, at 1. 17 Bethel would later be promoted to major general and serve as the Judge Advocate General from 1923 to 1924. 14 LOHBECK, supra note 1, at 72. 18 LOHBECK, supra note 1, at 72–74. 15 Id. 19 Headquarters, War Dep’t, Gen. Orders No. 68 (2 Sept. 1920).

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nominated Hurley to replace him. The U.S. Senate with front-line troops then encircling the at unanimously confirmed him to the office the following Stalingrad.25 month, “making Pat Hurley, now forty-six years old, the first cabinet officer from the State of Oklahoma, and the only Later, Brigadier General Hurley participated in both the Secretary of War to have served in the armed forces with the Cairo and Tehran conferences where he held the rank of rank of private.”20 Hurley was also the first Secretary of ambassador. After being promoted to major general in War to have previously served as an Army judge advocate.21 December 1943, Hurley went to Chungking as U.S. Ambassador to China in the summer of 1944. In addition to Hurley left office with the election of Franklin D. his diplomatic duties, Hurley also served as Roosevelt’s (and Roosevelt, but returned to public service with the start of later President Harry S. Truman’s) “personal representative World War II. Promoted to brigadier general in 1942 on military matters” until he left China in September 1945.26 (Hurley had remained in the Army Reserve and was a colonel at the start of the conflict), he was ordered to the After the war, Hurley moved to New Mexico, where he Southwest Pacific and placed in charge of “efforts to run the was active in both business and politics. He ran Japanese blockade of the Philippines with supplies for unsuccessfully for U.S. Senate as a Republican (1946, 1948, General MacArthur’s beleaguered forces on Bataan and 1952). Hurley died in Santa Fe, New Mexico, in July peninsula.”22 1963. He was eighty years old.

While Hurley was able to assemble ships and crews in Major General Hurley’s remarkable achievements as an Australia, only a few vessels managed to breach the Army lawyer and public servant have not been forgotten by Japanese blockade; for every ship that arrived, two were lost. the Corps: the courtroom at Headquarters, U.S. Army Fires But Hurley’s efforts did ensure that the American defenders Center of Excellence and Fort Sill, Oklahoma, is named in of the Philippines were never short of ammunition.23 As for his honor. Brigadier General Hurley, he experienced Japanese aggression first-hand when he was wounded in the head by More historical information can be found at shrapnel in a Japanese bombing attack on Port Darwin, 24 The Judge Advocate General’s Corps Australia. Regimental History Website

Dedicated to the brave men and women who have served our After a quick recovery from this injury, Hurley was Corps with honor, dedication, and distinction. appointed U.S. Minister to New Zealand. On 1 April 1942, he assumed duties in Wellington as the top American https://www.jagcnet.army.mil/History diplomat in the country. But Hurley was unhappy being in a civilian suit instead of serving alongside Soldiers and, when President Roosevelt asked him if he would like to visit Moscow as a special emissary, Brigadier General Hurley readily agreed. After arriving in the Soviet Union and meeting with Stalin, Hurley and his entourage spent ten days with the Red Army in combat operations, including time

20 LOHBECK, supra note 1, at 86.

21 Though Hurley was a judge advocate before serving as Secretary of War, he was not the first Secretary of War who also served as a judge advocate; that first belongs to Joseph Holt, who became a judge advocate after serving as Secretary of War. Holt served briefly as Secretary of War in the administration of President James Buchanan. President Abraham Lincoln then appointed Holt, who had no military experience, as Judge Advocate General of the Army. In the modern era, the only judge advocate to have served in the Army’s most senior civilian position is Togo D. West, Jr. West served as a captain in our Corps from 1969 to 1973 and then entered private practice in Washington, D.C. He returned to public service as Secretary of the Army from 1993 to 1997. For more on West, see CATHERINE REEF, AFRICAN AMERICANS IN THE MILITARY 241–43 (2010).

22 JUDGE ADVOCATE GENERAL’S CORPS, U.S. ARMY, THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL’S CORPS, 1775–1975, at 121 (1975).

23 LOHBECK, supra note 1, at 164. 25 Id. at 174–83. 24 Id. at 163. 26 Id. at 386, 417.

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The North Atlantic Treaty Organization Legal Advisor: A Primer

* Colonel Brian H. Brady

I. Introduction coordinate opportunities for NATO exercises and training events for augmentees and units identified for transfer to A lawyer who provides legal advice to a North Atlantic NATO operations.5 Recently, senior U.S. judge advocates Treaty Organization (NATO) client is known as a legal have commanded a NATO unit in Afghanistan.6 advisor (LEGAD).1 United States judge advocates perform Consequently, U.S. judge advocates, whatever their duty as LEGADs and occupy key NATO crisis assignment, need to know more about NATO and the establishment posts, advising clients who execute NATO-led LEGAD function. operations in Afghanistan, the Balkans, and other contingencies.2 Additionally, judge advocates serve in Preparation for duty in a NATO assignment can be NATO permanent establishment posts where they supervise frustrating.7 Judge advocates, particularly augmentees to other NATO legal personnel.3 Outside of NATO, U.S. judge NATO billets, are unlikely to receive funding to attend advocates deliver legal advice to U.S. commanders with exercises or training enroute to their assignments. responsibility for the support of geographically dispersed Compounding this frustration, NATO references are not U.S. personnel who fill NATO posts.4 U.S. judge advocates readily accessible to non-NATO personnel.8 The majority of NATO documents can only be accessed from NATO’s Document Handling System, which is generally restricted to * Judge Advocate, U.S. Army. Presently assigned to the Defense those with computer access to NATO’s electronic domain. Intelligence Agency Office of General Counsel Operations. Between 2010 Even when available, what publications are relevant? While and 2012, the author served as staff legal advisor (LEGAD) in the Office of the Legal Advisor, North Atlantic Treaty Organization (NATO), Allied the most useful primer on NATO is the NATO Legal 9 Command Transformation, , , . Deskbook, it is practically unavailable outside of NATO. While assigned as Deputy Staff Judge Advocate, U.S. European Command, Existing U.S. materials do not provide extensive insight into Patch Barracks, Stuttgart, Germany, he served as Acting Chief LEGAD, NATO’s operations or day-to-day LEGAD practice.10 So NATO Allied Joint Force Command , February through June 2004. The opinions and conclusions herein are those of the author and do not necessarily represent the views of either the Joint Warfare Centre, the U.S. Army Judge Advocate General’s Corps, U.S. Department of Defense, or NATO. The author wishes to acknowledge the invaluable assistance of the Command has evolved into providing superlative support to nearly 1300 Office of the Legal Advisor and CLOVIS team, Supreme Allied Command soldiers and civilians and 1500 family members throughout NATO.”). Id. Transformation, Staff Element Europe (SACT EE) in the preparation of this article. 5 U.S. judge advocates provide legal support to NATO exercise and training centers and NATO-accredited schools such as the Joint Warfare 1 ALLIED ADMIN. PUB. (AAP) 15, NATO GLOSSARY OF ABBREVIATIONS Centre (JWC) in Stavanger, Norway, and the NATO School at USED IN NATO DOCUMENTS AND PUBLICATIONS, at C-17 (23 Feb. 2013) Oberammergau, Germany. [hereinafter NATO GLOSSARY], available at http://nsa.nato.int/zPublic/ ap/aap15/aap-15.pdf (including both English and French abbreviations and 6 See generally Jack Goldsmith, ROLFF-A Gets a Boost from NATO, acronyms). LAWFARE (Jun. 9, 2011), http://www.lawfareblog.com/2011/06/rolff-a- gets-a-boost-from-nato/. The NATO Rule of Law Field Support Mission 2 The senior lawyer advising the NATO-led International Security has been commanded by four judge advocates: Brigadier General Mark Assistance Force (ISAF) is an Army judge advocate; the senior lawyer who Martins, Rear Admiral James Crawford, Brigadier General Ural Glanville, advises ISAF’s operational headquarters, the ISAF Joint Command (IJC), is and Brigadier General Patrick Reinert. also a U.S. Corps-level Staff Judge Advocate (SJA); the LEGADs for each of ISAF’s Regional Commands East, South, and Southwest are also U.S. 7 As part of the author’s duties in preparing personnel for deployment to divisional-level SJAs. The Deputy LEGAD for Kosovo Force (KFOR) is a NATO posts at ISAF as augmentees, he was frequently disappointed to U.S. judge advocate. Recently, Army judge advocates have been assigned learn that national fiscal constraints or conflicting duties prevented to NATO’s Land Component Command in Izmir, , and the German- attendance at NATO-mandated predeployment training. For example, the Corps, Muenster, Germany. In 2011, U.S. judge advocates past two senior LEGADs for ISAF who deployed as augmentees did not (U.S. Air Force) were temporarily assigned to the Combined Air Operations attend NATO predeployment training before assuming their posts as Center (CAOC) in to provide NATO targeting support to NATO’s NATO’s senior lawyers in theatre. Until about 2012, neither of the U.S. Operation Unified Protector (Libya). Judge advocates who practice as predeployment platforms, the CONUS Replacement Center (CRC) and LEGADs range in rank from lieutenant to colonel. See generally JUDGE Theater Specific Individual Requirements Training (TSIRT), covered ADVOCATE GEN.’S CORPS PERSONNEL DIRECTORY (Oct. 2012); see also NATO-specific training such as escalation of force training. JUDGE ADVOCATE GEN.’S CORPS QUILL AND SWORD NO. 29, ASSIGNMENTS, Winter 2012. 8 The NATO Standardization Agency (NSA) publishes unclassified NATO documents approved by NATO nations under standardization agreement 3 A U.S. judge advocate serves as senior LEGAD to Allied Joint Force (STANAG) and is available at http://nsa.nato.int/nsa/nsdd/listpromulg.html. Command Naples (one of two of NATO’s operational level commands; the equivalent of a combatant command) and supervises an , 9 OFFICE OF THE LEGAL ADVISER, ALLIED COMMAND TRANSFORMATION, including NATO International Civilians and non-U.S. judge advocates. STAFF ELEMENT EUROPE, NATO LEGAL DESKBOOK (2d. 2010) [hereinafter NATO LEGAL DESKBOOK] (copy on file with author). 4 See generally U.S. Army NATO Brigade History, U.S. ARMY NATO BRIGADE, http://www.usanato.army.mil/sites/programs/unithistory/index. 10 See, e.g., CTR. FOR LAW & MILITARY OPERATIONS, THE JUDGE .html (last visited Oct. 15, 2013) (“ NATO was ADVOCATE GEN.’S LEGAL CTR. & SCH., U.S. ARMY, JA 422, OPERATIONAL established by General Order #46, effective 20 December 1950 . . . the LAW HANDBOOK ch. 23, at 519–22 (2011). Only three pages are devoted to

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how can the judge advocate prepare for duty as a LEGAD? force, to restore and maintain the security This article provides some insight into NATO, its legal of the North Atlantic area.13 authorities, structure, and the practice of law as a LEGAD. NATO invoked the provisions of article 5 to the treaty for the first time in the aftermath of the 11 September 2001 II. NATO Legal Authority attacks on the United States.14 NATO Operation Active Endeavor (naval operations in support of 9/11 The North Atlantic Treaty Organization is a creation of counterterrorism missions in the Mediterranean) was one of international agreement. A mosaic of international the first NATO operations authorized under article 5.15 agreements establishes the NATO Alliance, states its mission, and grants privileges and immunities to its subordinate elements. The next section provides an 2. Non-Article 5 Activity overview of some of these key agreements. Not all NATO military activity can be justified under article 5 to the treaty. NATO member states16 have an A. North Atlantic Treaty of 1949 obligation to train and prepare for their defense. This is articulated in article 3 to the treaty.17 The political aspect of The North Atlantic Treaty, also known as the Washington NATO is reflected in the article 4 requirement that parties Treaty, establishes NATO legal authority, organization, and consult one another to resolve disputes or identify potential function.11 NATO is both a political entity and a military threats to the alliance.18 These authorities have been entity. NATO’s political leader is the Secretary General (currently Mr. Anders Fogh Rasmussen, a Danish citizen), 13 Id. while its military leader is the Supreme Allied Commander 14 Europe (SACEUR) (currently U.S. Air Force General Philip What is NATO?, Key Events, 2001, NORTH ATLANTIC TREATY ORGANIZATION, http://www.nato.int/nato-welcome/index.html (last visited M. Breedlove). The treaty establishes both a political and 22 October 2013) (“Large-scale terrorist attacks in New York and military role for the organization. Washington D.C. NATO invokes Article 5 for the first time ever and adopts a broader approach to security.”).

15 NATO A-Z, Operation Active Endeavour, NORTH ATLANTIC TREATY 1. Core Mission and Article 5 ORGANIZATION (June 21, 2013), http://www.nato.int/cps/en/natolive/topics _7932.htm?selectedLocale=en: Article 5 of the treaty states the core mission of NATO.12 This mission is based upon article 51 of the UN Charter, The deployment was one of eight measures taken by NATO to support the United States in the wake of the which provides for collective self-defense. Article 5 states terrorist attacks of 11 September 2001, following the as follows: invocation of Article 5, NATO’s collective defence clause, for the first time in the Alliance’s history. The Parties agree that an armed attack The deployment started on 6 October and was against one or more of them in Europe or formally named Operation Active Endeavour on 26 North America shall be considered an October 2001. Together with the dispatch of attack against them all and consequently Airborne Warning and Control System (AWACS) they agree that, if such an armed attack aircraft to the United States, it was the first time that NATO assets had been deployed in support of an occurs, each of them, in exercise of the Article 5 operation. right of individual or collective self- defense recognized by article 51 of the Id. Charter of the United Nations, will assist 16 NATO member states are the following: , , , the Party or Parties so attacked by taking Canada, , , , , France, Germany, forthwith, individually and in concert with , , , Italy, , , , the other Parties, such action as it deems Netherlands, Norway, , , , , , necessary, including the use of armed , Turkey, United Kingdom, and United States. NATO Member Countries, NORTH ATLANTIC TREATY ORGANIZATION (Apr. 9, 2013), http://www.nato.int/cps/en/nato-live/nato_countries.htm.

17 North Atlantic Treaty, supra note 11, art. 3 (“In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by NATO, and only six pages discuss multinational operations under which means of continuous and effective self-help and mutual aid, will maintain NATO operations also fall. and develop their individual and collective capacity to resist armed

attack.”). 11 North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243 (entered into force Aug. 24, 1949) [hereinafter North Atlantic Treaty], available at http://www.nato.int/cps/en/natolive/official_texts_17120.htm. 18 Id. art. 4 (“The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of 12 Id. art. 5. any of the Parties is threatened.”).

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 5 interpreted to give NATO its own engagement activity support to non-combatant evacuation (mirroring the activity of a U.S. combatant command), such operations (NEOs), freedom of navigation as the and the Mediterranean and overflight enforcement, sanction and Dialogue.19 While article 5 is a good start point in embargo enforcement, support to articulating the legal basis for traditional NATO operations, stabilization and reconstruction activities, the LEGAD may also refer to underlying United Nations peace enforcement (PE), and Security Council Resolutions (UNSCR) giving authority to counterinsurgency (COIN).24 engage in armed conflict under Chapter VII of the UN Charter.20 In this light, NATO doctrine provides for operational responses beyond article 5 self-defense. 3. Organizational Authority Under Article 9

To address the multitude of security scenarios facing the The North Atlantic Treaty establishes the North Atlantic alliance, NATO doctrine recognizes a category of activity Council (NAC).25 All NATO entities owe their base known as Non-Article 5 Crisis Response Operations authority to some action taken by the NAC. As part of (NA5CRO).21 Non-Article 5 operations cover contingencies NATO’s basic functions, the NAC establishes subsidiary that do not amount to a response to an armed attack on bodies which include political, military, and other alliance territory.22 The earliest example of this type of organizational entities within NATO. On the military side, operation includes the NATO-lead of the Implementation the NAC established the Military Committee (MC), which Force (IFOR) in Bosnia-Herzegovina.23 The doctrine states provides direction and guidance on military policy and as follows: strategy.26 The MC is supported by its International Military Staff (IMS). Among other things, the NAC approves rules NA5CRO range from support operations of engagement (ROE) and target lists for specified NATO primarily associated with civil agencies operations.27 through operations in support of peace, countering irregular threat activities, to The NAC is chaired by the Secretary General of NATO combat . . . this could include, but is not (Mr. Anders Fogh Rasmussen), who builds consensus within limited to, extraction operations, tasks in this political and military body. The Secretary General is support of disaster relief and humanitarian supported by the International Staff (IS) who works NATO’s operations, search and rescue (SAR) or political agenda.

The NAC is also empowered to establish a form of 28 19 NATO A−Z, Partnerships: A Cooperative Approach to Security, NORTH subsidiary body that is now known as a NATO Agency. ATLANTIC TREATY ORGANIZATION (20 Mar. 2013), http://www.nato.int/ NATO Agencies are the executive body within a subsidiary cps/en/natolive/topics_84336.htm?.

Over the past two decades, the Alliance has developed a network of structured partnerships with 24 AJP 3.4A, supra note 21, ch. 1, para. 0104b(2); see also Major J.D. countries from the Euro-Atlantic area, the Godwin, NATO’s Role in Peace Operations: Reexamining the Treaty After Mediterranean and the Gulf region, as well as Bosnia and Kosovo, 160 MIL. L. REV. 1 (1999) (examining implications for individual relationships with other partners across the the future of NATO out of sector in light of its 1990s-era operations and globe. Today, NATO pursues dialogue and practical Article VIII of the UN Charter). cooperation with 41 partner countries and engages actively with other international actors and 25 North Atlantic Treaty, supra note 11, art. 9 (“The Parties hereby organisations on a wide range of political and establish a Council, on which each of them shall be represented, to consider security-related issues. matters concerning the implementation of this Treaty. The Council shall be so organized as to be able to meet promptly at any time. The Council shall Id. set up such subsidiary bodies as may be necessary; in particular it shall establish immediately a defense committee which shall recommend 20 See, e.g., S.C. Res. 1386, U.N. Doc. S/RES/1386 (20 Dec. 2001) measures for the implementation of Articles 3 and 5.”). (authorizing a chapter VII action in Afghanistan); see also S.C. Res. 1776, U.N. Doc. S/RES/1776 (19 Sept. 2007) (explicitly recognizing NATO’s 26 Id. lead of ISAF which had previously been led by nations on a rotational basis since 2001). NATO has led ISAF since August 2003. 27 ALLIED JOINT PUB., AJP-01(D), ALLIED JOINT DOCTRINE (STANAG 2437) para. 0306b, ch. 3 (Dec. 21, 2010) [hereinafter AJP-01(D)], available 21 ALLIED JOINT PUB. 3.4A, ALLIED JOINT DOCTRINE FOR NON-ARTICLE 5 at http://nsa.nato.int/nsa/zPublic/ap/ajp-01(d).pdf (explaining the role of the CRISIS RESPONSE OPERATIONS (15 Oct. 2010) [hereinafter AJP 3.4A], Military Committee in recommending ROE for adoption by the North available at https://clovis.hq.nato.int/RC/Basic%20documents/,DanaInfo= Atlantic Council) (“During periods of crises, the MC advises the NAC and clovis.hq.nato.int+AJP_3_4_A.pdf (login and password required). DPC of the military situation, and makes recommendations on the use of military force, the implementation of contingency plans and the 22 Id. ch. 1, para. 0104b(2). development of appropriate rules of engagement.”); see also Id. para. 0521 (“Military actions are controlled by Rules of Engagement (ROE), which are 23 General Framework Agreement for Peace in Bosnia and Herzegovina, authorized by the NAC on approval of the OPLAN.”). Annex 1-A, Agreement of the Military Aspects of the Peace Settlement, 35 I.L.M. 75 (Nov. 21, 1995). 28 Id.

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body.29 NATO agencies include such entities as the NATO Sustainment Command in Germany, which is a U.S.-sending Standardization Agency (NSA), NATO Maintenance and state entity covered by the NATO SOFA, a NATO Supply Agency (NAMSA), and the NATO Communications international military headquarters such as the Allied Joint and Information System Services Agency (NCSA).30 Force Command Headquarters , Netherlands, is Soldiers who eat at a NATO dining facility on the NATO- not a sending state entity. Consequently, separate operated part of Kabul International Airport (KAIA) eat agreements govern its legal status and those of its personnel. meals that were contracted and paid for by a NAMSA. The next two sections address the Ottawa Agreement33 and Paris Protocol,34 which provide status to NATO entities located on member state territory. B. NATO Status of Forces Agreement

As North Atlantic Treaty member nations stationed C. Ottawa Agreement troops within each other’s territories for the purpose of defending the alliance, member nations agreed to afford In Ottawa in September 1951, just three months after the baseline privileges and immunities for activity and personnel signing of the NATO SOFA, the North Atlantic Treaty present on a treaty mission. The “Agreement between the members also signed an “Agreement on the Status of the Parties to the North Atlantic Treaty regarding the Status of North Atlantic Treaty Organization, National Their Forces,” which is more commonly known as the Representatives and International Staff.”35 The Ottawa NATO Status of Forces Agreement (NATO SOFA), Agreement defines and extends certain privileges and provides baseline privileges and immunities for all NATO immunities to “the Organization,” “the Council,” “subsidiary personnel stationed in and transiting within member bodies,” and “Chairman of the Council of Deputies.”36 nations.31 Privileges and immunities are further augmented These bodies encompass NATO Agencies, specialized by supplementary agreements with member nations. For boards, the International Staff, the International Military example, the Supplementary Agreement with Germany Staff, and the Military Committee. In essence, while adding extensively implements the basic NATO SOFA.32 the word “Organization” to North Atlantic Treaty, it established rules that facilitated ease of movement and In addition to the NATO SOFA, other agreements immunities for key policy makers. provide privileges and immunities for the activities of NATO personnel assigned to NATO subsidiary bodies and The Organization has “juridical personality; it shall have allied headquarters or international military headquarters. the capacity to conclude contracts, to acquire and dispose of Unlike a national headquarters such as the 21st Theater movable and immovable property and to institute legal proceedings.”37 The Organization has “immunity from every form of legal process [subject to waiver by the 29 See, e.g., , DEFENCE POL’Y AND PLANNING Chairman].”38 The Organization’s premises and archives COMM. (REINFORCED) NATO AGENCIES REFORM, INITIAL REPORT OF THE 39 LEGAL TASK FORCE ON AGENCY REFORM, AC/281-N(2011)0099 (R), annex “shall be inviolable.” The Organization “shall be exempt” 40 1, sec. 4 (19 May 2011) [hereinafter AGENCY REFORM REPORT] (Charters), from direct taxes, customs duties, and import restrictions. available at https://clovis.hq.nato.int/dana-na/auth/url_10/welcome.cgi Privileges and immunities were also extended to officials (login and password required). The report clarifies the distinction between such as the Executive Secretary, the Coordinator of North Agency and Subsidiary Body as follows: Atlantic Defence Production that are “normally accorded to 4.1 The subsidiary bodies listed at Annex 1, have been established through the approval of a Charter by the NAC . . . . In the context of the report it is to be noted that reference will be made to subsidiary 33 Agreement on the Status of the North Atlantic Treaty Organization, bodies rather than Agencies. According to the National Representatives and International Staff, 20 Sept. 1951, 5 U.S.T provisions of the respective Charters, Agencies are 1087, 200 U.N.T.S. 3 (entered into force May 18, 1954) [hereinafter Ottawa the executive body of an Organization created as a Agreement]. subsidiary body. 34 Protocol on the Status of International Military Headquarters Set Up Id. Pursuant to the North Atlantic Treaty, Aug. 28, 1952, 5 U.S.T. 870, 200 U.N.T.S. 340 (entered into force Apr. 10, 1954) [hereinafter Paris Protocol]. 30 Id. annex 1. 35 Ottawa Agreement, supra note 33. 31 Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67 36 Id. art. I. (entered into force Aug. 23, 1953) [hereinafter NATO SOFA]. 37 Id. art. IV. 32 Agreement to Supplement the Agreement of June 19, 1951, Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces 38 Id. art. V. With Respect to Foreign Forces Stationed in the Federal Republic of Germany, with Protocol of Signature, Aug. 3, 1959, 14 U.S.T. 531, 481 39 Id. arts. VI and VII. U.N.T.S. 262, T.I.A.S. No. 5351 (entered into force July 1, 1963) (as amended 24 U.S.T. 2355, T.I.A.S. No. 7759). 40 Id. art. X.

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diplomatic personnel . . . .”41 Further immunities were While Strategic Commands have significant authority in extended to “experts . . . employed on missions on behalf of the establishment of Allied Headquarters or International the Organization . . . .”42 The Ottawa Agreement does not Military Headquarters, the North Atlantic Council also has extend privileges and immunities to military headquarters or authority to apply the provisions of the Paris Protocol to other military bodies “unless the Council decides otherwise “any international military Headquarters or organization ...... ”43 which is established pursuant to the North Atlantic Treaty.”49 This authority provides a solution to the Paris Protocol rule that headquarters have to be “immediately D. Paris Protocol subordinate to a Supreme Headquarters.”50 For example, NATO accredits national training centers known as Centres In 1952, when NATO was still headquartered near Paris, of Excellence (COE), which support NATO capabilities. its member nations signed the “Protocol on the Status of These centres do not fall under the definition of subsidiary International Military Headquarters set up pursuant to the bodies, boards, organs, or Allied Headquarters subordinate North Atlantic Treaty.” 44 France, however, later renounced to a Strategic Command. Since Allied Command the Protocol when it withdrew from NATO in 1966, and Transformation is NATO’s proponent of exercises, doctrine, Canada has not ratified it; therefore, issues related to and training, but does not have immediate oversight over a headquarters in their territory must be resolved with COE, it turns to the North Atlantic Council to vest an reference to separate bilateral or multilateral agreements. accredited Centre of Excellence with Paris Protocol status.51

The Paris Protocol, as it is known, extends the privileges and immunities of the NATO SOFA to NATO’s Allied E. Operational Agreements Headquarters or International Military Headquarters and their personnel.45 Technically, these headquarters must be As NATO deploys military capability out of treaty “immediately subordinate to a Supreme Headquarters.”46 territory, its agreements may have no effect on non-NATO Most importantly, the Paris Protocol vests the source of legal states. Consequently, NATO executes additional authority and legal personality in NATO’s Supreme agreements to provide legitimacy for its mission, plus Headquarters.47 Now known as Strategic Commands, the privileges and immunities for its personnel. For example, two Supreme Headquarters (Allied Command Operations NATO’s military presence and privileges and immunities for located in Mons, Belgium, and Allied Command its role in Afghanistan as lead for the International Security Transformation, located in Norfolk, Virginia) are the source Force (ISAF) is set forth in a Military Technical Agreement of authority for subordinate elements. As NATO elements (MTA).52 While U.S. forces acting under Operation are established on member state territory, the Strategic Commands negotiate “special arrangements” with a 49 receiving state to further implement the Paris Protocol.48 Id. art. XIV (“The whole or any part of the present Protocol or of the Agreement [NATO SOFA] may be applied, by decision of the North Atlantic Council, to any international military Headquarters or organization . . . .”).

41 Id. art. XX. 50 Id. art. 1c.

42 Id. art. XXI. 51 See, e.g., History of the CCOE, CIVIL-MILITARY CO-OPERATION CTR. OF EXCELLENCE, http://www.cimic-coe.org/home/history.php (last visited Oct. 43 Id. art. II. 18, 2013).

44 Paris Protocol, supra note 34. In November 2005, the final decision on the transformation of the former CGN HQ in to a CCOE 45 Id. art. II (“The Agreement [NATO SOFA] shall apply to Allied was made by the Sponsoring Nations and supported Headquarters in the territory of a Party to the present Protocol in the North by ACT and SHAPE . . . . The decision marked the Atlantic Treaty area, and to the military and civilian personnel of such start of a formalised accreditation procedure, which Headquarters and their dependents . . . .”). was concluded on 31 July 2007 when the North Atlantic Council granted the CCOE the status as a 46 Id. art. Ic (“‘Allied Headquarters’ means any Supreme Headquarters and NATO accredited Centre of Excellence, with the any international military headquarters set up pursuant to the North Atlantic status of an International Military Body, IAW Article Treaty which is immediately subordinate to a Supreme Headquarters.”) 14 of the Paris Protocol. (emphasis added). Id. 47 Id. art. X (“Each Supreme Headquarters shall possess juridical personality; it shall have the capacity to conclude contracts and to acquire 52 Military Technical Agreement Between the International Security and dispose of property.”). Assistance Force and the Interim Administration of Afghanistan, 4 Jan. 2002, 41 I.L.M. 1032 [hereinafter MTA]. Annex A sets forth the status of 48 Id. (“The receiving State may, however, make the exercise of such forces arrangement; see also Exchange of Letters Between the NATO capacity subject to special arrangements between it and the Supreme Secretary General and the Government of the Islamic Republic of Headquarters or any subordinate Allied Headquarters acting on behalf of the Afghanistan (22 Nov. 2004) (“‘NATO Personnel’ means the military and Supreme Headquarters.”). civilian personnel assigned or attached to or employed by the North Atlantic Treaty Organization, its member States, and non-NATO Troop Contributing

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Enduring Freedom have the equivalent of the 1961 Vienna communications services,57 and standardization of policy.58 Convention on Diplomatic Relations administrative and These bodies are located in select member states while their technical privileges and immunities, under a 2003 exchange personnel may be deployed to NATO Command Structure of notes,53 U.S. forces assigned or acting under Transfer of headquarters. Authority (TOA) to ISAF are also covered by the MTA. These subsidiary bodies derive their legal status, privileges, and immunities from the Ottawa Agreement of III. NATO Structure 1951.59 The Ottawa Agreement grants “juridical personality” to the North Atlantic Council and its subsidiary This section explores the various entities that were bodies.60 The North Atlantic Council and its subsidiary created to execute alliance functions since the inception of bodies enjoy immunity with regard to its property and the North Atlantic Treaty. The purpose is to provide a assets,61 premises,62 and archives.63 NATO is reviewing and general understanding of NATO’s civilian bureaucracy and consolidating its subsidiary bodies under a process known as military structure so that the judge advocate can frame issues in the context of their mission and legal status While U.S. personnel perform duty at most of these entities, very few of these entities have a U.S. judge advocate on the LEGAD NSPA’s mission is to provide responsive, effective staff. The most useful open source of information about and cost-efficient logistics support services for systems and operations. This support is provided—in these structures can be found in the Allied Joint Publication, times of peace, crisis and war, wherever required—to AJP-01(D), Allied Joint Doctrine, which is also known as the NATO member nations, the NATO Military Standard NATO Agreement (STANAG) 2437.54 Authorities and partner nations, both individually and collectively. In line with guidance provided by the North Atlantic Council, it aims to maximise the ability and flexibility of armed forces, contingents, A. North Atlantic Council, Committees, and Subsidiary and other relevant organisations to execute their core Bodies mission.

Id. As discussed in the previous section, the North Atlantic Council is not only the focal point for decision-making, but 57 NATO A-Z, The NATO Communications and Information Agency (NCI is also the source of legal authority within the North Atlantic Agency), NORTH ATLANTIC TREATY ORGANIZATION, http://www.nato.int/ Treaty.55 The North Atlantic Council establishes subsidiary cps/en/natolive/topics_69332.htm (last visited Oct. 16, 2013). bodies that support the Secretary General and provide NCI Agency delivers advanced Command, Control, forums that represent national interests. These bodies Communications, Computers, Intelligence, include the International Staff, which supports the Secretary Surveillance and Reconnaissance (C4ISR) General, and the International Military Staff, which supports technology and communications capabilities in support of Alliance decision-makers and missions, the Military Committee (MC). The Military Committee is including addressing new threats and challenges such essentially the forum for the Chiefs of Defense (i.e., as cyber and missile defence. This includes the Chairman of the Joint Chiefs of Staff) of each member state acquisition of technology, experimentation, the to engage in military policy and operational decisions. promotion of interoperability, systems and architecture design and engineering, as well as testing and technical support. It also provides The North Atlantic Council also creates entities that are communication and information systems (CIS) now known as NATO Agencies. NATO Agencies perform services in support of Alliance missions. major support functions such as procurement,56 Id.

58 NSA Mission, NATO STANDARDIZATION AGENCY, http://nsa.nato.int/ States that are operating under NATO command and control arrangements nsa/ (last visited Oct. 16, 2013) (“The NSA is an independent NATO or in support of the International Security Assistance Force.”). Agency that reports to the Committee for Standardization (CS) for general oversight and direction. (The NSA reports directly to the Military 53 Agreement Regarding the Status of United States Military and Civilian Committee, however, for issues relating to operational standardization.) The Personnel of the U.S. Department of Defense Present in Afghanistan in Agency’s mission is to foster NATO standardization with the goal of Connection with Cooperative Efforts in Response to Terrorism, enhancing the combined operational effectiveness of Alliance military Humanitarian and Civic Assistance, Military Training and Exercises, and forces.”). Other Activities, U.S.-Transitional Islamic State of Afghanistan, Sept. 26, 2002–May 28, 2003, 2002 U.S.T. LEXIS 100 (entered into force May 28, 59 Ottawa Agreement, supra note 33. 2003). 60 Id. art. IV. 54 AJP-01D, supra note 27. 61 Id. art. V. 55 North Atlantic Treaty, supra note 11, art. 9. 62 Id. art. VI. 56 NATO A-Z, The NATO Support Agency (NSPA), NORTH ATLANTIC TREATY ORGANIZATION (28 June 2012), http://www.nato.int/ 63 Id. art. VII. cps/en/natolive/topics_88734.htm.

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Agency Review.64 Agency Review raises several legal included subordinate component commands much like a issues under the Ottawa Agreement concerning disposition U.S. combatant command (Air, Land, Maritime, and Special of assets, disposition of records, downsizing, relocation, Operations Forces (SOF)).70 The component commands are renaming of a body, and effect of international agreements.65 now stand-alone service-like component commands which This is associated with name changes and modification to provide forces for a Joint Force Commander. Army judge agency charters, which may impact supplementary advocates are serving at JFC Naples and the Land agreements on their status in member states. Component Command in Izmir, Turkey.

Allied Joint Force Commands are international military B. NATO Command Structure headquarters staffed with NATO Permanent Establishment (PE) posts. If the Allied Joint Force Command sets up a NATO’s military construct is institutionalized under the subordinate command to execute operations, the deployed NATO Command Structure (NCS).66 The current command post may be established via crisis establishment (CE) billets structure dates to a NATO Military Committee Decision of created by a document known as a Combined Joint 2003, which consolidated a multitude of -era Statement of Requirements (CJSOR).71 For example, all Allied commands including numerous sub-regional LEGAD billets within ISAF are coded as CE billets on the commands.67 Two Strategic Commands (SC) act as the CJSOR for ISAF and its subordinate operational command, focal point for NATO’s operations and concepts: Allied the IJC. Additional contributions to the CE billet structure Command Operations and Allied Command Transformation. are considered a Voluntary National Contribution (VNC), From a legal perspective, Strategic Commands are the thus are an excess requirement and not reflected on the source of legal personality or “juridical personality” for all CJSOR.72 subordinate international military headquarters.

2. Allied Command Transformation 1. Allied Command Operations NATO’s transformational training and doctrine capability NATO’s operations capability is institutionalized in its is vested in Allied Command Transformation (ACT).73 The Strategic Command known as Allied Command Operations Supreme Allied Commander Transformation (SACT) used (ACO), which is still referred to by its legacy name: to also be the Commander, U.S. Joint Forces Command Supreme Headquarters Allied Powers Europe (SHAPE).68 (USJFCOM), Norfolk, Virginia; but with USJFCOM’s Supreme Allied Commander Europe (SACEUR) commands closure, SACT is now a French flag officer’s post. ACT’s not only ACO, but is also Commander, U.S. European “core task is to lead the transformation of NATO’s military Command (USEUCOM). Allied Command Operations structures, forces, capabilities and doctrine in order to provides direction and guidance to its subordinate Allied improve the military effectiveness of the Alliance.”74 Allied Joint Force Commands (JFC): JFC Brunssum, and JFC Command Transformation’s subordinate commands include Naples.69 Until recently, each Joint Force Command ACT Staff Element Europe, Mons, Belgium; Joint Warfare Centre, Stavanger, Norway; Joint Force Training Centre 64 (JFTC), Bydgoszcz, Poland; Joint Analysis and Lessons NATO A-Z, NATO Reform, NORTH ATLANTIC TREATY ORGANIZATION 75 (8 April 2013), http://www.nato.int/cps/en/natolive/topics_68230.htm Learned Centre, Monsanto, Portugal. (“Agencies Review aims to enhance efficiency and effectiveness in the delivery of capabilities and services, to achieve greater synergy between similar functions and increase transparency and accountability. At the Summit, Allies agreed to streamline the 14 NATO agencies into 70 Id. annex 3, para. 3A2a. three major programmatic themes: procurement, support, and communications and information.”). 71 ALLIED COMMAND OPERATIONS (ACO), DIR. 45-3, ALLIED COMMAND OPERATIONS CRISIS ESTABLISHMENT (CE) MANAGEMENT ch. 1, para. 1-5a 65 AGENCY REFORM REPORT, supra note 29. (10 Mar. 2011) [hereinafter ACO DIR. 45-3] available at https://clovis.hq.nato.int/RC/Basic%20documents/,DanaInfo=clovis.hq.nato 66 AJP-01(D), supra note 27, ch. 3. .int+ACO_DIR_045_003.pdf (login and password required) (describing the force generation process: “Following the NAC Force Activation Directive, 67 NORTH ATLANTIC MILITARY COMM., MC 324/1 (MILITARY DECISION), a force generation process is triggered by SHAPE releasing the Activation THE NATO MILITARY COMMAND STRUCTURE (16 May 2003) (NATO- Warning (ACTWARN). A Combined Joint Statement of Requirements restricted). THE NATO COMMAND MILITARY STRUCTURE was reissued as (CJSOR) is drawn up by SHAPE CPP . . . .”); see also NATO GLOSSARY, NORTH ATLANTIC MILITARY COMM., MC 324/1 (MILITARY DECISION), supra note 1, at C-17. THE NATO MILITARY COMMAND STRUCTURE (16 Feb. 2010) (NATO- restricted). 72 NATO GLOSSARY, supra note 1, at V-3.

68 AJP-01(D), supra note 27, annex 3A, para. 3A2a n.3 (“This historic 73 AJP-01(D), supra note 27, annex 3A, para. 3A2b. acronym [SHAPE] continues to be used despite recent changes to the NATO military command structure.”). 74 Id.

69 Id. 75 Id. annex 3, para. 3A2b n.5.

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A judge advocate should look to ACT to fulfill spectrum of operational responses, including Non-Article 5 predeployment training requirements. The Joint Warfare Crisis Response Operations (NA5CRO).79 Non-Article 5 Centre and the Joint Force Training Center provide exercise operations cover contingencies that do not amount to a and training opportunities that are particularly important to response to an armed attack on Alliance territory.80 NATO’s judge advocates at the operational (Corps) and tactical operations enforcing the U.N. mandate during Operation (Division) level. The Joint Warfare Center provides an Unified Protector was a glimpse into NATO’s potential exercise platform for staff personnel filling positions at HQ future. One type of NATO entity that may be called upon to ISAF and the IJC. The Joint Force Training Centre provides execute these operations includes the NATO Response Force a similar platform for those deploying to ISAF Regional (NRF).81 The NRF is a combined joint package comprising Commands. Air, Land, Maritime, and SOF capabilities to meet an extant crisis.82 In 2012, U.S. V Corps and U.S. III Corps sent their deploying legal staff to participate in a combined exercise, UNIFIED ENDEAVOR/ISAF Training Event, hosted by the IV. Transfer of U.S. Personnel and Units to NATO Joint Multinational Training Center in Grafenwoehr, Germany. NATO allies also sent their deploying personnel A. Doctrine for Multinational Operations who were designated to fill NATO billets in the deployed NATO LEGAD office. As NATO missions evolve, more [W]hen a group of countries wants to launch a joint effort will likely be made to train NATO Force Structure intervention as a coalition–which confers political units that are assigned to perform NATO Response Force legitimacy–only NATO can provide the common command duties on behalf of the Alliance. structure and capabilities necessary to plan and execute complex operations.83

C. NATO Force Structure U.S. doctrine concerning multinational operations was significantly revised in July 2013 and reflects U.S. NATO Command Structure provides the basis for NATO experience with NATO operations. In an Alliance command and control of units that have been transferred to operation, Alliance rules provide both the political and NATO control. Nations allocate units or personnel to fill military framework for unity of effort.84 Under U.S. NATO Force Structure (NFS) military response capabilities, doctrine, there are three types of multinational command which are the actual fighting elements within NATO.76 NATO Force Structure may be “composed of allied, national and multinational forces, together with affiliated 79 AJP 3.4A, supra note 21. headquarters, which are placed at the Alliance’s disposal on 80 a permanent or temporary basis under specified readiness Id. ch. 1, para. 0104b(2).

criteria. National contributions to NATO Force Structure 81 ALLIED JOINT PUB. (AJP) 3(B), ALLIED DOCTRINE FOR THE CONDUCT OF are made available to the Alliance under both the agreed OPERATIONS para. 0229, ch. II, (Mar. 16, 2011) [hereinafter AJP-3B], mechanisms for the Transfer of Authority [TOA] and by available at http://nsa.nato.int/nsa/zPublic/ap/ajp-3(b).pdf (“The NATO coordination and cooperation agreements . . . .”77 A U.S. Response Force (NRF) is a high-readiness, joint and combined force whose purpose it is to provide an immediate military response to an emerging judge advocate has recently been assigned to a NATO Force crisis as part of the Alliance comprehensive crisis management system for Structure unit: the German-Netherlands Corps, Muenster, both Article 5 and crisis response operations. The NRF mission is to Germany. While NATO Force Structure units have limited provide a rapid demonstration of force and early establishment of a NATO U.S. judge advocate presence, U.S. personnel are assigned to military presence.”); see also ALLIED COMMAND OPERATIONS DIR. (AD) 80-96, NATO RESPONSE FORCE (24 Apr. 2013) [hereinafter AD 80-96] NATO posts in many NATO Force Structure units. In this (NATO restricted); NORTH ATLANTIC MILITARY COMM., MC 477 way, it is possible for a U.S. Corps or Division to deploy (MILITARY DECISION), MILITARY CONCEPT FOR THE NATO RESPONSE under the operational command of NATO. Consequently, FORCE (Apr. 10, 2003) (NATO-restricted). the SJA for the U.S. Corps or Division will be responsible 82 AD 80-96, supra note 81. for legal advice concerning NATO operations. 83 Ivo H. Daadler & Admiral James S. Stavridis, Supreme Allied The traditional function of NATO Force Structure units Commander Europe and Commander U.S. European Command, NATO’s has been to fight a conventional war under article 5 of the Victory in Libya: The Right Way to Run an Intervention, FOREIGN AFF., 78 Mar./Apr. 2012, at 4. The authors go further by comparing NATO Alliance North Atlantic Treaty. Emerging threats demand a broader operations to multilateral coalitions which “by contrast, have no common doctrine for conducting military operations, no common capabilities or command structure for quickly integrating national forces into a cohesive 76 NORTH ATLANTIC MILITARY COMM., MC 317/1(MILITARY DECISION), campaign, and no standing mechanisms for debating then deciding on an THE NATO FORCE STRUCTURE (24 July 2001) (NATO-restricted). agreed course of action. Such ad hoc coalitions therefore almost always rely disproportionately on a single nation to bear the brunt of security 77 AJP-01(D), supra note 27, annex 3A, para. 3A7. burdens that ideally should be more equally shared.” Id.

78 North Atlantic Treaty, supra note 11, art. 5. 84 Id.

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 11 structures: Integrated; Lead-nation (LN); and Parallel.85 NATO-led Fully Integrated multinational headquarters. In Similarly, NATO doctrine (adopted by the United States as contrast, the United States was the Lead Nation for the STANAG 2490) recognizes three structural models for the command and control of Multinational Forces−Iraq command and organization of multinational forces: Fully (MNF−I) during Operation Iraqi Freedom (OIF), which was Integrated; Lead Nation; and Framework Nation.86 While characterized by ad hoc bilateral arrangements.89 still part of NATO’s joint doctrine, the structural models are no longer reflected in NATO’s operational doctrine.87 The After the dissolution of the Soviet Union in 1991, the Fully Integrated model is the prime example of a command United States found itself increasingly committed to structure that provides a common umbrella of ROE, staff multinational operations involving NATO.90 Judge 88 procedures, and political aims. For example, HQ ISAF is a doctrine and standardization characterize alliances. Established command structures may be modified or 85 JOINT CHIEFS OF STAFF, JOINT PUB. 3-16, MULTINATIONAL OPERATIONS tailored for particular operations, especially when ch. II, para. 4 (17 July 2013) [hereinafter JOINT PUB 3-16] (identifying three combined operations include non-allied members. types of multinational command structure: Integrated (e.g., NATO); Lead- nation (e.g., Operation Iraqi Freedom); Parallel (e.g., 1991)). b. Combined command relationships often reflect either an integrated command structure or a LN [lead 86 ALLIED JOINT PUB. (AJP) 3(A), ALLIED DOCTRINE FOR JOINT nation] command structure. Alliances typically have OPERATIONS ch. 1, sec. V (Multinational Cooperation (the Combined established command structures, support systems, Approach to Operations), para. 0147 (Command Organization) (2 July and standardized procedures. In combined operations, 2007) [hereinafter AJP 3A], available at https://clovis.hq.nato.int/RC/Basic such structures should be used to the maximum %20documents/,DanaInfo=clovis.hq.nato.int+AJP_3_A.pdf (login and practical extent. Combined command and force password required). structures often mirror the degree of allied member participation. Subordinate commands are often led by a. Fully Integrated. Fully integrated forces are based senior military officers from member nations. on a ‘proportional shares’ bi- or multinational basis Effective operations within an alliance require that with national components and a fully integrated the senior political and military authorities be in headquarters. The working language and procedures agreement on the type of command relationships that would be agreed by the contributing nations. will govern the operations of the forces. Commanders of such multinational formations are Notwithstanding peacetime command relationships, usually appointed on a rotational basis. the political sensitivities associated with actual operations will impact command relationships and b. Lead Nation. One nation would assume operating procedures. responsibility for the planning and execution of an operation. The commanding officer, staff, Id. Command, Control, Communications and Information (C3I) structure, doctrine and logistic 89 Joint Publication 5.0, Joint Operation Planning, which states as follows: coordination of the force would normally be provided by one nation (the lead nation). Other nations could 17. Multinational Planning and Coordination assign contributions to this force, and fill staff positions in the lead nation’s staff. a. General. Multinational operations is a collective term to describe military actions conducted by forces c. Framework Nation. One nation provides the of two or more nations. Such operations are usually framework for the required command structure and undertaken within the structure of a coalition or forces. The key elements of the staff and the alliance, although other possible arrangements headquarters support would come from the include supervision by an IGO (such as the United framework nation. The working language and Nations or Organization for Security and Cooperation procedures though would be based on Alliance in Europe). A coalition is an arrangement between standards. two or more nations for common action. Nations usually form coalitions for a single occasion or for Id. longer cooperation in a narrow area of common interest. An alliance is a result of formal agreements 87 AJP 3(A) is superceded by ALLIED JOINT PUB. (AJP) 3(B), supra note between two or more nations for broad, long-term 81, para. 3, preface (“The main difference between AJP-3(A) and AJP-3(B) objectives that further the common interests of the is that this publication better reflects the linkage between the newly revised members. Key to any multinational operation is the capstone joint doctrine document AJP-01(D) [supra note 27], with which it achievement of unity of effort among political and should be used in conjunction.”); see also AJP-01(D), supra note 28, at military leaders of member nations emphasizing 0316 (preserving the language cited at footnote 85). common objectives and shared interests as well as mutual support and respect[emphasis added]. 88 JOINT PUB 3-16, supra note 85, para. 5, ch. II (articulating the U.S. view (and virtues) of alliance operations): JOINT PUB. 5.0, JOINT OPERATION PLANNING ch. II, para. 17, at II-37 (11 Aug. 2011). 5. Multinational Command Structures 90 See, e.g., Current Operations, ALLIED COMMAND OPERATIONS, a. In multinational commands, national political http://aco.nato.int/ongoingoperations.aspx (last visited Oct. 16, 2013). objectives are addressed and generally subsumed Current operations include NATO-led command and control of the within MNF objectives at the alliance treaty level. International Security Assistance Force (ISAF); NATO-led mission in Typically, alliance command structures have been support of the U.N. mandate for a peace support operation in Kosovo carefully developed over extended periods of time (KFOR); Operation Active Endeavor (an enduring maritime and have a high degree of stability and consensus; counterterrorism operation in the Mediterranean); and Operation Ocean

12 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 advocates and other U.S. lawyers assigned to NATO posts The assignment process is slightly different for personnel play an important role in shaping and executing NATO assigned to operational billets known as Crisis Establishment operations.91 Consequently, there are growing opportunities (CE) posts. to serve outside of national units in NATO Command Structure, NATO Force Structure, NATO Organizations, and Operational and tactical crisis establishment posts include their subsidiary bodies.92 those found at Headquarters (HQ) International Security Assistance Force (ISAF), HQ ISAF Joint Command (IJC), NATO Training Mission-Afghanistan (NTM−A), NATO B. NATO Posts Rule of Law Field Support Mission−Afghanistan (NROLFSM-A), and HQ Kosovo Force (KFOR).95 When Assignment to a NATO staff billet in a permanent NATO the SJA of a U.S. Corps becomes the Chief LEGAD of a headquarters or subsidiary body, known as a Permanent NATO crisis establishment post such as the IJC, the SJA is Establishment (PE) post, is a national decision, which in the also vested as a NATO LEGAD responsible for the delivery case of the United States, after service and branch equities of advice on NATO operations. have been met, is coordinated by a staff element located at the U.S. European Command.93 Since the assignment of NATO Force Structure is filled by units of specific U.S. personnel to NATO is part of a member state’s military capabilities that have been offered to NATO by contribution to NATO, NATO does not reimburse the Troop Contributing Nations (TCN) and accepted under a Department of Defense for assignments to NATO posts.94 NATO operational regime known as Transfer of Authority (TOA).96 Not all NATO Force Structure is comprised of crisis establishment posts. When a troop-contributing nation Shield (ongoing counter-piracy operations in the waters off the Horn of proffers capability (personnel or a unit) to NATO, it is the Africa). Id. equivalent of a service providing organized, trained, and 97 91 E.g., JFC Naples Chief LEGAD is a U.S. Army judge advocate colonel; equipped forces to a Combatant Commander. the KFOR Deputy LEGAD is a U.S. Army judge advocate colonel; the Chief LEGADs for both ACO and ACT are retired U.S. Navy judge advocates; the Chief LEGADs and almost the entire LEGAD CE posts for HQ ISAF, IJC, NATO Training Mission-Afghanistan (NTM-A) (Commander, NTM-A are dual-hatted as Commander of the U.S. Combined A. Typically, short-term assignments would be for Security Training Command-Afghanistan (CSTC-A)), and Regional the purpose of participating in a joint exercise or Commands East, South, and Southwest are comprised of U.S. judge maneuvers conducted under the auspices of the advocates; the Combined Air Operations Centre (CAOC) servicing the international organization. U.S.CENCTOM AOR, including Afghanistan air operations, is populated by U.S. Air Force attorneys; U.S. judge advocates filled key JFC Naples Air B. Long-term assignments typically involve filling an Component Command slots in its CAOC during execution of missions over existing billet on the staff of an international Libya during Operation Unified Protector; ISAF’s direct reporting unit, the organization. NATO Rule of Law Field Support Mission-Afghanistan, is commanded by a U.S. one-star judge advocate. C. Support under paragraphs 090201.A. and B., are not reimbursable to DoD. As an exception to this 92 AJP-01(D), supra note 27, ch. 3. policy, support by members of a U.S. military element who provide services that were included in 93 CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. 1600.01A, CHARTER the budget of the international organization (e.g., a FOR UNITED STATES EUROPEAN COMMAND NATO MANNING DIVISION U.S. military member who occupies an international para. 6a(2)(b)1 (10 Dec. 2010) [hereinafter CJCSI 1600.01A] (The manning civilian billet) shall be reimbursable . . . . division, inter alia, “[m]anages manpower requirements and sourcing strategies for U.S. contributions to NATO, to include Voluntary National Id. at 4. Contributions, dualhat, rotational and non-quota post allocations, and U.S. joint requirements.”). 95 ACO DIR. 45-3, supra note 71, para. 1-4a (defining a CE billet as “a table setting out the authorised posts for a CRO [Crisis Response Operation] unit, 94 U.S. DEP’T OF DEF., FINANCIAL MANAGEMENT REGULATION, DOD formation or headquarters”). 7000.14R, VOL. 11A, CH.R 9, SUPPORT OF INTERNATIONAL MILITARY ACTIVITIES para. 0902 [hereinafter FMR], available at 96 ALLIED COMMAND OPERATIONS DIR. 80-20, ALLOCATION OF FORCES http://comptroller.defense.gov/fmr/current/11a/Volume_11a.pdf (last visited AND TRANSFER OF AUTHORITY (17 June 2011) [hereinafter ACO DIR. 80- Oct. 18, 2013). This policy is articulated as follows: 20] (NATO-restricted). For U.S. forces, this requires Secretary of Defense approval, under provisions of 10 U.S. Code § 162, because this is an 090201. Nonreimbursable Support allocation of U.S. forces that are outside the normal “forces for” Combatant Commanders process. The Department of Defense (DoD) provides nonreimbursable support to international military 97 CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. 2700.01E, organizations in two forms: (1) through a financial INTERNATIONAL AGREEMENTS FOR RATIONALIZATION, STANDARDIZATION, contribution to the budget of the international AND INTEROPERABILITY (RSI) BETWEEN THE UNITED STATES ITS ALLIES organization, or (2) by assignment of U.S. military AND OTHER FRIENDLY NATIONS encl. A, para. 4b (18 Jan. 2012) elements to the international organization under the [hereinafter CJCSI 2700.01E] (reinforcing the NATO rule that “Nations are terms of international treaties or agreements (see responsible for training, organizing, and equipping the forces they have DoD Directive 5530.3, “International Agreements”). earmarked for, or assigned to, an alliance or Coalition.”) (emphasis The U.S. military elements may be assigned either on added). a long-or short-term basis.

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Personnel assigned to NATO posts at the operational assignments create administrative and logistical challenges level (e.g., HQ ISAF, IJC, NTM-A) have to receive training to all nations who must support dispersed clusters of mandated by their controlling operational Allied Joint Force personnel. In the case of the United States, the Secretary of Command (JFC).98 Additionally, the post’s job description Defense designates a service to act as administrative agent (JD) may require that the incumbent receive specialized for the logistical support of U.S. personnel assigned to predeployment training and education.99 Supervisory international military HQs.102 For example, the U.S. Army LEGADs should specify training and education is the agent for the International Military Staff at HQ NATO requirements in office JDs to not only ensure deployment of in Belgium, while the U.S. Navy is the agent for JFC Naples, qualified personnel, but also to maximize training and the U.S. Air Force is the agent for JWC in Norway. opportunities while in the post. When a JD contains training This support may also extend to fiscal contributions to the requirements, NATO may fund a portion of transportation mission of the unit based upon Memoranda of costs, using NATO international travel funds once the post is Understanding (MOUs).103 For example, the United States filled.100 For personnel assigned to posts in Afghanistan at the operational level, their first taste of NATO training could be at the Joint Warfare Centre, Stavanger during an ISAF a. Supreme Headquarters Allied Powers Europe (SHAPE) Predeployment Training Event or Individual Augmentee Army Predeployment Training (IAPDT). Upon learning about a (Mons, BE) potential NATO assignment, particularly at the operational b. HQ Allied Joint Force Command Brunssum (HQ JFCBS) level, U.S. military lawyers should contact the incumbent Army Joint Warfare Centre LEGAD to determine what training is (Brunssum, Netherlands (NL)) available. c. HQ (HQ MARCOM) Air Force (Northwood, United Kingdom (UK)) C. U.S. Support to its Personnel in NATO Posts . . . The United States assigns personnel to NATO posts (3) Allied Deployable Air Command and Control Center located in diverse locales including Izmir, Lisbon, Madrid, Army 101 Milan, Mons, Muenster, and Stavanger. These (DACCC) (Poggio Renatico, Italy(IT))

(4) Combined Air Operations Center #5 Army 98 See, e.g., Letter from Allied Joint Force Command Brunssum, subject: (Poggio Renatico, IT) NATO-Led ISAF Predeployment Training 2013, para. 1 (22 Nov. 2012) [hereinafter JFCB Training Memo], available at https://clovis.hq.nato. . . . int/RC/References/,DanaInfo=clovis.hq.nato.int+LTR_JFCBS_PreDeploym ent_2013.pdf (login and password required). e. HQ (HQ LANDCOM) Air Force The purpose of this letter is to inform ISAF Troop Contributing Izmir, Turkey (TU) Nations of the requirement to attend NATO-led Pre- Deployment Training. The NATO training professionals at all . . . of the NATO Education and Training Facilities provide the best training available, and this is critical to our success in g. HQ Allied Joint Force Command Naples (HQ JFCNP) Afghanistan. The annexes to this letter provide detailed Navy information regarding the HQ ISAF/IJC pre-deployment (Naples, IT) training and other selected training events for 2013, as well as the ISAF training calendar for 2013, and details regarding 102 Id. course content. Subsequent quarterly letters will provide updates and changes as necessary for each quarter of 2013. 103 Id. para. 090303 (Administrative Agent). The administrative agent shall:

Id. A. Budget for the U.S. contributions to designated non-NATO international military organizations. 99 ACO DIR. 45-3, supra note 71, para. 3-2a (“Pre-deployment Training When the Army is not the administrative agent for a Requirements. Any requirement for national mandatory pre-deployment NATO body, or other multinational headquarters, the training is the responsibility of each TCN or NATO for deployed NICs designated agent shall provide the Army with [NATO International Civilians discussed later]. NATO requirements are program and budget information on the annual specified on the JD.”) (emphasis added). contribution for inclusion in the Army’s O&M appropriation. Budgeting for the NAPMA constitutes 100 See, e.g., ALLIED COMMAND OPERATIONS, DIR. 60-50, TRAVEL ON an exception to this policy. INTERNATIONAL DUTY (21 Dec. 2006) [hereinafter ACO DIR. 60-50]. B. Coordinate with appropriate U.S. representatives 101 For an exhaustive list of these headquarters, see FMR, supra note 94, at the international military organizations to ensure vol. 11A, ch. 9, tbl.9-1. An extract of Administrative Agent responsibilities that effective procedures and controls are prescribed for ACO is as follows: for budgeting, obligating, disbursing, and receiving credits incident to administering the U.S. 2. Allied Command Operations (ACO) contributions.

14 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 is a major financial supporter of the NATO School mandates that the LEGAD be part of the Command Group Oberammergau, Germany based, on an original agreement and not subordinated to another staff element.107 Apart from between the U.S. Army and Germany executed in 1974.104 obvious cultural differences and specific mission focus, a In NATO, the term “MOU Organization” refers to a U.S. judge advocate will find that the organization and multilaterally funded entity such as NATO Centres of functions of a NATO LEGAD Office are remarkably similar Excellence and operational units, such as the Allied Rapid to those of an Office of the Staff Judge Advocate or General Reaction Corps (ARRC), which are funded via multilateral Counsel’s Office. MOU.105 Service attitude, funding, and resourcing, therefore, have a great impact on the quality of life for U.S. personnel assigned to NATO structures. B. Legal Research Tools

Few LEGADs gain NATO experience while practicing V. NATO LEGAD Practice and Issues law in their national posts. Opportunities to attend NATO collective legal training may also be limited.108 LEGADs A. LEGAD Organization and Function filling NATO posts as augmentees face a significant challenge preparing for their NATO duties. Compounding NATO LEGAD organization and function is derived the lack of exposure to NATO experience and training from NATO’s Bi-Strategic Command (Bi-SC) Directive 15- opportunities is limited access to NATO documents. Reach- 23, which governs the delivery of legal advice within back to national systems is also limited by having a NATO’s two Strategic Commands.106 This regulation “foreign” IP address (NATO is not on the <.mil> or <.gov> domain). Further, U.S. LEGADs may not have the ability to use a CAC on NATO systems. NATO’s document handling C. Program and allocate resources in a manner that systems exclude access to personnel who are not part of will provide the international organization with the NATO organizations and subsidiary bodies, NATO highest possible level of support under section 0902 Command Structure or NATO Force Structure posts. and paragraphs 090402, 090403, or 090404 of this Fortunately, there are several ways to get access to relevant chapter consistent with financial constraints that may be imposed through the normal program and budget information. process. The NATO e-Library page provides links to its official D. Support U.S. military elements attached to the texts.109 The NATO Standardization Agency (NSA) website designated international military organization on a nonreimbursable basis, unless the support is an provides access to key unclassified doctrinal publications international budget cost or is a budget responsibility that have been adopted by NATO member nations as a of another Military Department (see paragraph Standard NATO Agreement.110 Upon request, prospective 090304). The standards and directives of the LEGADs can obtain a copy of the NATO Legal Deskbook, administrative agent shall govern the level and type of support furnished. The level and type of support which provides a superb overview of key legal issues and 111 will be consistent with the highest possible level of NATO processes. The NATO Legal Gazette (first support allowable under this chapter while not violating those same governing standards and directives. Support requirements based upon input provided by the U.S. military element shall be nato.int/RC/Basic%20documents/Forms/,DanaInfo=clovis.hq.nato.int+All% included in the administrative agent’s annual budget. 20Directives.aspx (login and password required). In carrying out this support responsibility, the administrative agent shall obtain support from the 107 Id. para. 7 (“The Office of the Legal Adviser is a key member of the most efficient and economical source while ensuring Command Group and the Senior Legal Adviser enjoys direct access to the that no parallel support facility is established when Commander.”). the support may be performed economically by local sources (see DoD Instruction 4000.19, “Interservice 108 NATO training is also available at numerous ACT-recognized NATO and Intragovernmental Support”). Centres of Excellence. Additionally, the NATO School, Oberammergau, Germany is a mainstay of NATO-oriented legal training. The NATO E. Provide U.S. military elements, which are Table of School offers an excellent introductory course for NATO LEGADs and Organization and Equipment (TO&E) or equivalent more advanced operational law and targeting courses for seasoned units, with replacement issues of consumable and LEGADs. Funding for attendance falls on the nations. nonconsumable material, obtaining peculiar items when necessary from supply systems of the parent 109 e-Library, NORTH ATLANTIC TREATY ORGANIZATION, http://www.nato. Military Service on a reimbursable basis. int/cps/en/SID-78FFB86D-59C6D9E0/natolive/publications.htm (last visited Oct. 16, 2013). 104 Id. vol. 11A, ch. 9, tbl.9-1. 110 See, e.g., AJP-01(D), supra note 27 (the AJP is adopted as STANAG 105 Id. vol. 11A, ch. 9, para. 4, tbl.9-1 (outlining MOU Organizations, 2437). which include NATO Rapid Deployable Corps, German-Netherlands Corps, Muenster, Germany). 111 NATO LEGAL DESKBOOK, supra note 8 (the Deskbook is in constant draft and, as a living document, gets better with each evolution). The 106 BI-STRATEGIC COMMAND, DIR. 15-23, POLICY ON LEGAL SUPPORT (23 current edition consists of 17 parts as follows: July 2009) [hereinafter BI-SC DIR. 15-23], available at https://clovis.hq.

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published in 2006) provides NATO LEGAD practitioners’ U.S. Standing Rules of Engagement, NATO ROE are insights to current NATO issues.112 Once in-processed to a tailored for a specific operation. The North Atlantic Council NATO post, or upon request before assuming a NATO post, authorizes ROE for this purpose.115 Generally, Annex E of NATO LEGADs will have access to Comprehensive Legal all NATO operations plans will contain the approved ROE Overview Virtual Information System (CLOVIS), which is and Political Policy Indicators governing the operation. an online community of interest sponsored by the legal Additional amplification of the ROE, and a useful tool for element of ACT’s Staff Element Europe.113 interpretation of the ROE, is found in the ROE implementation message (ROEIMPL—pronounced “ROW- impull”). ACO/SHAPE, in its capacity as Strategic C. Common Legal Issues Command, issues ROEIMPL which are a compilation of ROE from MC 362/1 that apply to the operation.116 1. Rules of Engagement Additional legal definitions and guidance will normally be contained in the OPLAN’s legal Annex AA. The definitions Legal Advisors serving within NATO Command and for hostile act and hostile intent are particularly important Force Structure have a key role in the delivery of operational for the NATO practitioner because they will not necessarily law advice to their commands. For example, the LEGADs mirror their national practice.117 located at JFC Naples, the Land Component Command Izmir, and German-Netherlands Corps devote a substantial NATO does not issue ROE on self-defense because portion of their duties to operational law issues. Legal NATO considers self-defense to be a matter of national Advisors assigned to NATO contingencies such as law.118 What the United States might consider self-defense Headquarters ISAF and the ISAF Joint Command (IJC) can rules appear under NATO’s “Attack” series of ROE as expect to focus almost all their NATO efforts on operational responses to hostile acts or intent.119 One term peculiar to law. Consequently, LEGADs who deliver operational law NATO ROE includes Series 33 rules (Use of Force in advice must be versed in NATO Rules of Engagement. Designated Operations): Persons Designated Special Status (PDSS) and Property Designated Special Status (PrDSS).120 NATO has its own Rules of Engagement as part of its An area that LEGADs need to know is whether national integrated alliance command and control structure.114 Unlike caveats impact the ability of a troop contributing nation to execute a given mission.121 Ultimately, NATO ROE provide an umbrella under which most nations’ ROE are tailored to Part I: The Development and Organization of NATO and the execute their role in a NATO-led operation. Deviations Overview of NATO Bodies; Part II: Decisionmaking and Document Management; from NATO ROE are declared by national caveats and 122 Part III: Introduction to the Law of International Organizations published by ACO/SHAPE for a given operation. The and to Key NATO Legal Documents; ROE may appear transparent to the Soldier on the ground, Part IV: Key NATO Legal Documents on the Status of Forces but the LEGAD needs to know the bigger picture and must and Headquarters; Part V: Treaty Law, International Agreements and NATO Practice; Part VI: Legal Support in NATO; Part VII: Personnel; Part VIII: Overview of NATO Procurement, Logistics or Service Organizations; https://clovis.hq.nato.int/RC/Basic%20documents/Forms/,DanaInfo=clovis. Part IX: NATO Resources and Financial Matters; hq.nato.int+All%20Policies.aspx?Paged=TRUE&p_SortBehavior=0&p_Fil Part X: Logistics; eLeafRef=MC%5f0215%5f39%2epdf&p_ID=1107&PageFirstRow=61&& Part XI: Legal Framework and Legal Basis of Military View={26EBCA3E-CBFA-44FF-8278-DAB9F59872FE} (login and Operations; password required). Part XII: Introduction to the Law of Armed Conflict and Rules of Engagement; 115 Id. para. 14. Part XIII: Issues in Operations: Special Operations from a Legal Perspective; 116 Id. para. 22. Part XIV: Issues in Operations: Claims; Part XV: EU Crisis Management Operations and their 117 Major Winston S. Williams, Jr., Multinational Rules of Engagement: Relations with NATO Operations; Caveats and Friction, ARMY LAW., Jan. 2013, at 24. In this excellent Part XVI: Human Rights in Military Operations; article, the author discusses the friction caused by national caveats to Part XVII: Environmental Protection. NATO ROE and differing national interpretation related to self-defense.

112 See, e.g., Mr. Richard Pregent, Cyber Defense and Counterintelligence, 118 NATO ROE, supra note 114, para. 7. 26 NATO LEGAL GAZETTE, No. 26, 29 Sept. 2001, at 13, available at https://clovis.hq.nato.int/Pages/,DanaInfo=clovis.hq.nato.int+Resources.asp 119 Id. Series 42. x (login and password required). 120 Id. para. 6 (the rules appear at Series 332 and 333). 113 CLOVIS, NATO SPECIAL OPERATIONS NETWORK, https://clovis.nshq. nato.int/ (last visited Oct. 17, 2013) (login and password required). 121 See generally Williams, supra note 117.

114 NORTH ATLANTIC TREATY ORG., MILITARY COMM., MC 362/1, NATO 122 NATO ROE, supra note 114, para. 5. RULES OF ENGAGEMENT (2003) [hereinafter NATO ROE], available at

16 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 deliver training that includes all relevant ROE, as well as used at the joint operational level by the United States,127 escalation of force policy and tactical directives.123 although it may not be practiced by its service components at the tactical level.128 NATO targeting is similar to the Like U.S. practice, NATO considers ROE to be commander’s business; but unlike U.S. practice, NATO fixes responsibility for coordination of ROE in a position (perceptions) of actors within the operations environment, and to changes to the strategic coded as ROE Staff Officer. The ROE Staff Officer is a environment. Effects can be grouped into two NATO post. This post is generally assigned to the categories physical and non-physical. Although all Operations Directorate or CJ3 of a NATO operational staff. physical effects will lead to some form of non- In some cases, that officer may be a trained lawyer or physical effect, their primary purpose will be to influence the capabilities of actors, while non- LEGAD. The post does not function under the direct physical effects are principally directed to an actor’s supervision of the LEGAD; therefore, the Chief LEGAD behaviour (also referred to as the cognitive domain). (i.e., SJA equivalent) must ensure that the ROE Officer does This change in the behavioural or physical state of a not deliver legal advice. system (or system elements), which results from one or more actions, or other causes, may be categorized: (1) Desired Effects are those effects that will have a positive impact on the achievement of objectives. 2. Targeting and Effects (2) Undesired Effects are those effects that disrupt or 124 jeopardize the achievement of objectives. In turn, NATO has a refined targeting process. This process these have to be mitigated. results in what is known as the Joint Prioritized Target List (JPTL–pronounced “JAY-Pit-ul”). Under the standard (3) Intended effects are pre-determined effects that process, practiced during NATO exercises, the JPTL are anticipated to result from the actions taken.

includes both kinetic and non-kinetic (e.g., influence) (4) Unintended effects are those effects that are not targets. NATO targeting is part of an “effects based anticipated or envisioned to be associated with the approach” to operations (EBAO).125 NATO’s emerging objectives and actions taken. These effects may be operations doctrine formulated in the Comprehensive desired or undesired.

Operations Planning Directive (COPD) reinforces use of Id. effects in NATO planning as part of what it terms the “Comprehensive Approach.”126 The effects approach is also 127 See generally JOINT CHIEFS OF STAFF, JOINT PUB. 3-60, JOINT TARGETING ch. I, para. 8b, at I-8 (13 Apr. 2007) [hereinafter JOINT PUB 3- 60]. This publication describes the four principles of targeting and defining 123 Major Winston S. Williams, Jr., Training the Rules of Engagement for effects as follows: the Counterinsurgency Fight, ARMY LAW., Jan. 2012, at 42 (referring to the ISAF tactical directive which provides additional guidance to commanders). Effects-based. To contribute to the achievement of the JFC’s objectives, targeting is concerned with the 124 Allied Joint Doctrine for Joint Targeting, AJP 3.9,[STANAG 2524] (22 creation of specific desired effects through target May 2008) [hereinafter AJP 3.9] available at https://clovis.hq.int/RC/Basic engagement. Target analysis considers all possible %20documents/,DanaInfo=clovis.hq.nato.int+AJP_3_9.pdf (login and means to create desired effects, drawing from all password required); see also ACE DIR. 80-70, CAMPAIGN available capabilities. The art of targeting seeks to SYNCHRONIZATION AND JOINT TARGETING IN ACO (27 Apr. 2010) create desired effects with the least risk and (NATO-restricted) [hereinafter ACE DIR. 80-70]. expenditure of time and resources.

125 AJP 3.9, supra note 124; see also NATO Military Comm. Id. Memorandum, MCM-0052-2006, MC POSITION ON EFFECTS BASED APPROACH TO OPERATIONS para. 5 (6 June 2006), available at 128 See, e.g., U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS (Feb. https://clovis.hq.nato.int/ 2008), addressing Effects and Army Doctrine: RC/References/,DanaInfo=clovis.hq.nato.int+MCM_0052_2006.pdf (login and password required) (NATO’s Military Committee defines EBAO as D-11. Army forces conduct operations according to follows: “the Effects Based Approach to Operations is the coherent and Army doctrine. The methods that joint force comprehensive application of the various instruments of the Alliance, headquarters use to analyze an operational combined with the practical cooperation along with involved non-NATO environment, develop plans, or assess operations do actors, to create effects necessary to achieve planned objectives and not change this. During operations, joint force ultimately to the NATO end state.”). headquarters provide direction to senior Army headquarters. Army headquarters then perform the 126 ALLIED COMMAND OPERATIONS COMPREHENSIVE OPERATIONS military decisonmaking process (MDMP) to develop PLANNING DIR., (COPD INTERIM V1.0), annex A, para. 1-13 (17 Dec. 2010) its own plan or order. (FM 5-0 describes the MDMP.) [hereinafter COPD] (Operational Art in the Alliance Context, Operations Design) available at https://clovis.hq.nato.int/RC/Basic%20documents/ D-12. Army forces do not use the joint systems Forms/,DanaInfo=clovis.hq.nato.int+All%20Directives.aspx (login and analysis of the operational environment, effects- password required), describing effects as follows: based approach to planning, or effects assessment. These planning and assessment methods are intended Effects play a crucial role because they provide a for use at the strategic and operational levels by focus for actions and contribute to the properly resourced joint staffs. However, joint accomplishment of objectives and the end state. interdependence requires Army leaders and staffs to Actions are designed to create effects that contribute understand joint doctrine that addresses these to changes in the capabilities, behaviour or opinions methods when participating in joint operation

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process defined by U.S. joint operational doctrine using Training LEGADs in targeting ensures that NATO terms such as JPTL.129 forces comply not only with international law, but also with command intent to minimize civilian casualties. Upon NATO doctrine provides LEGADs with additional tools review of Operation Unified Protector (the NATO-led to facilitate delivery of cogent legal advice on targeting. mission to enforce the UNSCR mandate in Libya), Admiral ACE Directive (AD) 80-70, Annex K provides an extensive Stavridis, then the SACEUR, declared that NATO must train list of desired effects and targeting options for a more lawyers, among other personnel, to improve NATO commander.130 Combined with targets approved by the targeting: North Atlantic Council, and commander’s intent, this doctrine provides LEGADs a meaningful way to articulate However successful, NATO’s intervention their advice and achieve a rational operational end state. in Libya suggested that the organization must strengthen its basic infrastructure if it During NATO-led ISAF Training Events, the LEGAD hopes to increase its role in global security training audience gets extensive exposure to targeting. The . . . Within the command structure, for NATO process is modified for the unique requirements of example, the alliance has failed to devote ISAF. HQ ISAF has pushed the targeting process to the the necessary resources to developing key ISAF Joint Command (IJC), which manages the Targeting skills, including the capacity to find and Operations Cell (TOC) with the support of working groups engage the types of mobile targets and boards to nominate, approve, and engage a target. ISAF common in contemporary operations, plan targeting is split into two processes: kinetic targeting is joint operations in parallel with fast-paced handled by the Joint Targeting Working Group (JTWG– political decision-making, [and] support pronounced “JIT-Wig”), resulting in the Joint Prioritized the targeting process with legal advice Effects List (JPEL—pronounced “JAY-Pel”); and non- . . . .132 kinetic targeting which results in the Joint Prioritized Influence List (JPSIL—pronounced “JIP-Sill”).131 The terminology and process change frequently; therefore, judge 3. NATO Training and Exercise Support advocates assigned to this important task must obtain specialized training. Another aspect of NATO’s operational law practice includes LEGAD support to NATO exercises and training. NATO training guidance comes from Bi-Strategic planning or assessment or commanding joint forces. Command Directive (Bi-SC) 75-3, which not only outlines (Jt PUBs 3-0 and 5-0 establish this doctrine.) the collective training process, but also outlines the key roles played by commanders in Allied Command Transformation D-13. Describing and assessing operations in terms and Allied Command Operations.133 Judge advocates may of effects does not fundamentally change Army doctrine. Army operations remain purpose based and be tasked to assist with predeployment training as subject conditions focused. The fundamentals of full matter experts. spectrum operations and mission command include the idea of focusing efforts toward establishing As part of national preparations for deployment, all conditions that define the end state. Achieving success in operations requires commanders to gauge NATO personnel are required to receive training in the law 134 their progress continually. Assessing whether tasks of armed conflict. This is a legal subject that is governed are properly executed cannot accomplish this alone. by national law, not only because NATO as an entity is not a Rather, commanders assess an operation’s progress signatory to the Geneva Conventions, but also because by evaluating how well the results of executing various tasks contribute to creating end state conditions. 132 Daadler & Stavridis, supra note 83, at 6. Id. at D-2. 133 BI-STRATEGIC COMMAND DIR. 75-3, COLLECTIVE TRAINING AND 129 JOINT PUB 3-60, supra note 127, ch. II, para. 3c, at II-4 through II-10. EXERCISE DIRECTIVE (CT&ED) para. 1-16b (28 Oct. 2010) [hereinafter BI- SC DIR. 75-3] available at https://clovis.hq.nato.int/RC/Basic%20 130 ACE DIR. 80-70, supra note 124 (Annex K identifies Desired Effects documents/,DanaInfo=clovis.hq.nato.int+BI_SC_75_3.pdf (login and which include at least nine ways to “Kill/Destroy,” six ways to “Influence,” password required) (“As directed by SACT, the JWC promotes and and five ways to “Monitor.”). supports NATO’s joint and combined experimentation, analysis and doctrine development processes to maximize transformational synergy and 131 See generally, NATO/ISAF Secret-HQ IJC Standard Operating to improve NATO’s capabilities and interoperability.”). Procedure 2020, IJC Joint Targeting, Nomination, Vetting and Management Procedures (5 Apr. 2013), available at HQ ISAF and HQ IJC 134 ALLIED TRAINING PUB., ATRAINP-2, TRAINING IN THE LAW OF ARMED CENTRIX websites (classified access only); see also NATO/ISAF Secret- CONFLICT ch. 1, para. 3.2.1 (20 Mar. 2013) [hereinafter STANAG 2449], HQ IJC SOP 220, IJC Joint Targeting, Nomination, Vetting and available at http://nsa.nato.int/nsa/zPublic/ap/ATrainP-2%20EDA%20V1% Management Procedures (22 Oct. 2011); see also NATO/ISAF Secret-HQ 20E.pdf (“In order to meet the legal obligations placed upon them by IJC SOP 398, Target Management and the Employment of Indirect Fires LOAC, Nations are required to train their Personnel in LOAC. LOAC ISO ISAF Offensive Operations (24 Aug. 2011). training is a national responsibility.”).

18 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 nations have separate reservations and caveats regarding establishes command training objectives.140 The OSE their international legal obligations. NATO does, however, designates an Officer Conducting the Exercise (OCE) who is have a Standard NATO Agreement on the minimum in essence, the commander of the exercising unit, such as a standards for training in the law of armed conflict.135 NATO Force Structure entity (e.g., Commander, NATO Standard NATO Agreement 2449 provides elementary Rapid Deployment Corps).141 The OSE will also designate outlines and a script for training that encourages the use of an Officer Directing the Exercise (ODE), who is the legal advisors.136 commander of the training platform.142 The ODE “supports the OCE for the detailed planning and overall execution of Judge advocates who deploy to the ISAF Joint Command the exercise by creating the conditions which allow the or other NATO contingencies may receive predeployment achievement of the exercise aim and objectives.”143 The training at NATO’s Joint Warfare Centre in Stavanger Joint Warfare Centre is normally the ODE and supports Norway or at the Joint Multinational Training Center in exercises and training through scenario development, lessons Grafenwoehr, Germany.137 An Army judge advocate is learned, and capture, analysis, and execution of the computer assigned to the Joint Warfare Centre and acts as a bridge to assisted exercise (CAX) script system known as the Joint NATO training of U.S. lawyers. The Joint Warfare Centre’s Exercise Management Module JEMM.144 Within this Program of Work (POW) is driven by its immediate construct, a lawyer from the Joint Warfare Centre becomes headquarters, Allied Command Transformation.138 The Joint the lead LEGAD for legal-related exercise play.145 Warfare Centre also works transformation projects requiring legal support.139 These exercise and training events require Within the Joint Warfare Centre, the lead LEGAD is significant build-up and participation. expected to serve, inter alia, in the following roles: LEGAD Subject Matter Expert (SME); Functional Area Training In NATO, the commander requiring an exercise is known (FAT)/Battle Staff Training (BST) moderator for the as the Officer Scheduling the Exercise (OSE): this could be LEGAD training audience; instructor on legal topics during SACEUR or a Joint Force Commander who places the Mission Specific Training (MST) and Cross-FAT; and role requirement on NATO’s master exercise calendar and player during the exercise.146 This provides a “crawl-walk- 147 run” approach to training. One of the key roles of the 135 Id. ch. 1, para. 1 (“The training standard goal is to standardize training ISAF exercise lead LEGAD is to “[c]oordinate additional in the Law of Armed Conflict (LOAC) by establishing a minimum standard Legal SMEs and role players . . . .” Consequently, lead of training to ensure that NATO operations are conducted in accordance LEGAD maintains contacts in theater to solicit subject with LOAC, where applicable.”).

136 Id. ch. 1, para. 3.2.3 (“Nations shall ensure that legal advisors are 140 Id. para. 1-9a. available, when necessary, to advise military commanders at the appropriate level on the application of LOAC and on the appropriate instruction to be 141 Id. para. 1-9b. given to the armed forces on this subject.”). 142 Id. para. 1-9c; see also para. 1-16b(1) (“When JWC is designated ODE 137 BI-SC DIR. 75-3, supra note 133. for an exercise, the OCE and ODE will coordinate efforts to enable setting the conditions for achievement of the OSE’s aim and objectives and the 138 Id. at para. 1-16b; see also General Stephane Abrial, Supreme Allied OCE’s approved training objectives.”). Commander Transformation, Memorandum 5000 C-210/TT-5272/Ser: NU 0282, enclosure 1, para. 51(2) (27 Apr. 2010) (ACT Strategic Plan). The 143 Id. SACT mandates that all officers and senior NCOs read his Strategic Plan within fourteen days of joining the command. This extract articulates one 144 JWC SOP NO. 800, JWC STANDING OPERATING PROCEDURES- key mission that JWC executes on behalf of ACT. ACT’s exercise and EXERCISES (30 Aug. 2011) [hereinafter JWC SOP 800] (copy on file with training mission is articulated as follows: the JWC Office of the LEGAD).

Develop and deliver Education and Individual 145 Id. ch. 09 (Legal Support). Training (E&IT) to NATO common standards in support of SACEUR’s requirements, including but 146 Id. ch. 09, para. 2.c (identifying eight LEGAD duties for ISAF exercises not limited to his strategic priorities. Support and training events). SACEUR’s collective training and exercise requirements throughout design, specification, 147 Id. During ISAF Training Events, for example, the training audience planning, execution and assessment in accordance progresses as follows: Mission Specific Training (MST) where broad with political military guidance and SACEUR’s mission-related subjects, such as cultural awareness and COIN theory is operational requirements. discussed; Electronic Working Practices (EWP) where the training audience develops individual information technology skills such as locating SOPs on Id. command portals; Functional Area Training (FAT) and Cross-FAT present specific instruction in a staff section’s organization and function (e.g., 139 BI-SC Dir. 75-3, supra note 133, para. 1-16b(3) (“(3) JWC, as SACT’s LEGADs learn about the role and mission of their offices at HQ ISAF or agent, will be responsible for managing collective experimentation in HQ IJC); Battle Staff Training (BST) integrates FAT into collective exercises. JWC will assign an Experimentation Integrator and lead the demonstrations and walk-thru of working groups and boards; Mission Operational Experimentation and Capability Integration Process. Rehearsal Exercise (MRE) consolidates all the training in the “run” phase of Furthermore, JWC provides concept integration of innovative or mature the training event where the training audience assumes responsibility for concepts (methods, procedures and/or techniques) as directed by HQ SACT their staff functions and learn to collaborate as a team based on the exercise and ACO on exercises focusing on the operational level.”). scenario.

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matter expert support.148 In this way, U.S. judge advocates exercise. Joint Implementation may travel from their deployed locations to deliver Agreements (JIAs), if required, must be specialized legal topics such as targeting. concluded by the Component Commands/Sending Nations by the Initial Another type of training concerns the NATO Response Planning Conference.151 Force (NRF). This training takes a different tack from ISAF exercises by using a phased approached to develop an Templates for requesting and developing host nation operational level staff. The phased approach includes a support agreements are found in Allied Joint Publication series of exercise events, or training sessions, that culminate (AJP) 4.5B.152 For logisticians and LEGADs alike, AJP in a scenario replicating a world crisis. Thus, a staff 4.5B provides a useful template that can be used for other contingent may train as the equivalent of a predeployment operational logistical support requirements. Note that some site survey (or operational liaison reconnaissance team) nations may require substantial staffing to accept the variety which will encounter role players representing host nation of agreements contemplated under this publication.153 Other officials. As the NATO staff drafts its operational plans, the processes exist to obtain support within NATO outside of exercise commitment builds to the simulation of a normal acquisition channels. These rules developed as a deployment. result of NATO experience during United States’ Return of Forces to Germany (REFORGER) exercises in the 1970s, The lead LEGAD duties include: scenario development, when Host Nations (HNs) declined to be bound by U.S. which includes “preparing United Nations Security Council contracting clauses, foreign military sales, and offshore Resolutions, Status of Forces Agreements, and other procurement legal regimes.154 documents. . . [such as] EXPLAN Legal Annex, Rules of Engagement (ROE).” The LEGAD also assists with As an outgrowth of the REFORGER experience, many “scripting for legal realism; serves as observer-trainer during NATO nations and entities (such as SHAPE/ACO) have Phases . . . ; [and] prepares briefs or point papers on legal what are now known as Acquisition and Cross-Servicing issues.”149 The observer-trainer role may include travel to a Agreements (ACSA) with the United States, enabled under Joint Force Command or Component Command to assist its the successor law to the NATO Mutual Support Act of LEGAD staff in their roles. 1979.155 A Standard NATO Agreement (STANAG) exists to provide equipment to NATO.156 For the purposes of an Logistical and host nation support are identified up to exercise, NATO uses the term host nation to include a five years in advance of a NATO exercise under the Military sending state that has a facility located on a receiving States’ Training and Exercise Program (MTEP).150 As part of the soil: for example, the United States may be regarded as the MTEP process, the Strategic Commands identify the host nation for the exercise. Bi-Strategic Command Directive 75- 151 3 mandates the following time lines and should involve Id. para. 3-2l.

LEGAD support to develop requirements: 152 ALLIED JOINT PUBLICATION (AJP) 4.5, EDITION B, VERSION 1, HOST NATION SUPPORT DOCTRINE AND PROCEDURES (6 May 2013) [hereinafter NATO Host Nation Support (HNS) AJP 4.5B] (STANAG 2234) (6 May 2013), available at requests to NATO nations should be made http://nsa.nato.int/nsa/zPublic/ap/ajp-4.5%20edb%20v1%20e.pdf.

two years in advance of the exercise Phase 153 Id. at iv (DEU, POL and the United States express specific reservations III by SHAPE Readiness and to this policy). Requirements Directorate. HNS requests 154 to partner nations should be made three For the seminal discussion of this history, see Captain Fred T. Pribble, A Comprehensive Look at the North Atlantic Treaty Organization Mutual years in advance . . . . HNS selection, Support Act of 1979, 125 MIL. LAW REV. 187 (July 1989). Pribble is now including either standing or developed General Counsel for the U.S. Defense Logistics Agency. Memoranda of Understanding (MOUs) 155 should be concluded by SHAPE and the 10 U.S.C. §§ 2341–2350, subch. I, ch. 138 (2013). See also U.S. DEP’T OF DEF., DIR. 2010.9, ACQUISITION AND CROSS-SERVICING AGREEMENTS HN(s) one year in advance or a decision (28 Apr. 2013); U.S. CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. will be made on the continuance of the 2120.01B, ACQUISITION AND CROSS-SERVICING AGREEMENTS (20 Sept. 2010); Major Ryan A. Howard, Acquisition and Cross-Servicing Agreements in an Era of Fiscal Austerity, ARMY LAW., Oct. 2013, at 26. 148 JWC SOP 800, supra note 144, para. 2.c(4). It also helps being a U.S. VNC, since many Chief LEGADs in theatre are dual-hatted as both 156 STANAG 3381 provides a means of acquiring ACSA goods and NATO/ISAF and U.S. lawyers. services. See also U.S. ARMY IN EUROPE (AE) REG. 350-2, INTEGRATING THE ARMED FORCES OF OTHER NATIONS INTO U.S. ARMY UNIT-LEVEL 149 Id. para. 2(b)1-8. TRAINING EVENTS IN EUROPE, app. C (Third-Country Requirements for Training in Germany); see also U.S. CHAIRMAN OF THE JOINT CHIEFS OF 150 BI-SC DIR. 75-3, supra note 133, para. 3-2d (“The MTEP is the Bi-SCs’ STAFF, INSTR. 2700.01E, INTERNATIONAL MILITARY AGREEMENTS FOR programme that schedules exercises and exercise resources to implement RATIONALIZATION, STANDARDIZATION, AND INTEROPERABILITY (RSI) SACEUR’s strategic priorities and achieve the required levels of BETWEEN THE UNITED STATES, ITS ALLIES, AND OTHER FRIENDLY operational readiness . . . .”). NATIONS (18 Jan. 2012).

20 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 host nation for a multinational exercise on Grafenwoehr.157 implement these agreements.162 This type of cascading Finally, entering into agreements with partner nations, just authority is common to other NATO International Military like U.S. practice, requires authority to negotiate and Headquarters located in other NATO receiving States. Each conclude an international agreement.158 headquarters will have a different relationship with a receiving state; therefore, a critical role of the LEGAD is to interpret the application of these treaties and agreements to 4. NATO Status Issues minimize friction points. These relationships will be revised as NATO implements new host nation support policy, which Legal advisors who serve in any NATO subsidiary body, may impose greater support requirements on the host Command Structure, or Force Structure entity will have to nation.163 interpret either the Ottawa Agreement or Paris Protocol with regard to the daily operations of their headquarters. As an The authority to negotiate and conclude international example, the Joint Warfare Centre is immediately agreements is withheld to NATO’s Strategic Commands subordinate to Allied Command Transformation (ACT) under Bi-Strategic Command Directive 15-3, Preparation located in Norfolk, Virginia. Allied Command and Control of International Agreements.164 Absent Transformation has vested the Joint Warfare Centre with delegation of authority, or existing agreement with a juridical personality under the Paris Protocol because it is an Allied Headquarters, or International Military Headquarters, 159 Centre, concerning The Closure of Joint directly subordinate to a Strategic Command. Headquarters North, the Establishment of the NATO Additionally, “special arrangements” have been made to Joint Warfare Centre at Stavanger, Norway, and accommodate its mission in Norway.160 These arrangements Support of the NATO Joint Warfare Centre at include a Supplementary Agreement to the NATO SOFA Stavanger, Norway, dated 21 June 2006 (MOA), available at https://clovis.hq.nato.int/RC/Basic% with Norway, a Memorandum of Agreement, and local 20documents/Forms/,DanaInfo=clovis.hq.nato.int+Al 161 agreements. Also, internal directives and policy further l%20Agreements%20arrangements.aspx (login and password required) (copy on file with the JWC Office of the LEGAD). 157 BI-SC DIR. 75-3, supra note 133, para. 1-9p. D. Supplementary Agreement between the Kingdom of NATO defines Host Nation (NH) as a nation which, Norway and Headquarters Supreme Allied by agreement: receives forces and materiel of NATO Commander Transformation and Supreme and/or other nations operating on/from or transiting Headquarters Allied Powers Europe, subject: On the through its territory; allows materiel and/or NATO Special Conditions Applicable to the Establishment organizations to be located on its territory; and/or and Operation on Norwegian Territory of provides for these purposes. This term is also used in International Military Headquarters, dated 6 August a generic sense to identify a NATO military structure 2008. entity that “hosts” or provides support to participants in a NATO exercise; for example JWC and JFTC. E. Local Agreement between Norwegian Defence Estate Agency [NDEA] and Joint Warfare Centre for The Id. Support of the NATO Joint Warfare Centre in Stavanger, Norway, dated 20 Jan. 2009 (copy on file 158 BI-STRATEGIC COMMAND DIR. 15-3, PREPARATION AND CONTROL OF with the JWC Office of the LEGAD). INTERNATIONAL AGREEMENTS (11 Jan. 2007) [hereinafter BI-SC DIR. 15- 3] available at https://clovis.hq.nato.int/RC/Basic%20documents/Forms/, F. Local Agreement between Norwegian Defence DanaInfo=clovis.hq.nato.int+All%20Directives.aspx (login and password Logistic Organisation [NDLO] and Joint Warfare required). Centre for The Support of the NATO Joint Warfare Centre in Stavanger, Norway, dated 5 May 2009 159 Paris Protocol, supra note 34, art. X (“Each Supreme Headquarters shall (copy on file with the JWC Office of the LEGAD). possess juridical personality; it shall have the capacity to conclude contracts and to dispose of property. The receiving State may, however, make the 162 See, e.g., JOINT WARFARE CENTRE DIR. 16-13, INDIVIDUAL DUTY FREE exercise of such capacity subject to special arrangements between it and the PRIVILEGES (8 May 2013); JOINT WARFARE CENTRE DIR. 16-15, VAT Supreme Headquarters or any subordinate Allied Headquarters acting on REIMBURSEMENT OF GOODS BOUGHT IN NORWAY BY ENTITLED behalf of the Supreme Headquarters.”). PERSONNEL (25 May 2010).

160 Id. 163 NATO COMMAND STRUCTURE HOST NATION SUPPORT (HNS)— POLICY AND STANDARDS (PO) (2011) 0020 (8 Feb. 2011) (NATO- 161 The following agreements concerning the Joint Warfare Centre’s restricted) (effective Feb. 14, 2011). relationship with Norway typify arrangements that other international military headquarters have with their receiving states: 164 BI-SC DIR. 15-3, supra note 106, para. 1-1d (“Only the two Supreme Headquarters are given legal personality and authority to enter into A. The NATO SOFA, supra note 31. contracts and other legally binding agreements. The North Atlantic Council specifically recognizes the authority of SHAPE and HQ SACT to enter into B. Paris Protocol, supra note 34. international agreements that may be further delegated to subordinate headquarters. Subordinate headquarters may enter into contracts, C. Memorandum of Agreement between the Ministry of international agreements and other legally binding agreements only where Defence of the Kingdom of Norway and authority has been delegated to them by the Strategic Headquarters.”) Headquarters, Supreme Allied Commander (emphasis added). Transformation as represented by Joint Warfare

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 21 receiving state, subordinate commands have limited information management: the NATO Archives Committee, authority to conclude international agreements. This NATO the NATO Security Committee, and the NATO C3 Board policy mirrors U.S. policy.165 (NC3B).169 The key person, though, is the NATO Archivist appointed by the Secretary General.170 With NATO In the case of practice at the Joint Warfare Centre, a Archivist help, LEGADs can assist their commands with the LEGAD would apply the Supplementary Agreement and proper marking, retention, and disposition of documents.171 MOA between NATO and Norway to provide a basis for the NATO is not subject to Freedom of Information Act requests interpretation of the Centre’s relationship with Norway. The under national law; therefore, properly marked issues typify practice at other international headquarters and documentation ensures that its archives remain inviolable. include the following: special privileges afforded to The NATO website maintains a page on NATO Archives General/Flag Officers; review of extension of privileges and that includes links to key policy documents.172 The website immunities to family members when the servicemember is also demonstrates that member states can obtain documents deployed for extended periods; review of policy concerning of interest to their nations notwithstanding inviolability.173 provision and rationing of alcoholic beverages and other tax- free items to entitled NATO personnel; review and reinforcement of privileges to import and export free of duty 6. NATO Contracting and Fiscal Law and taxes, NATO-related goods and services; review of new agreements to extend receiving state logistics or real estate NATO contracting authority is derived from either the facilities and services to NATO personnel. Ottawa Agreement or the Paris Protocol.174 This authority is implemented within both Allied Command Operations (ACO) and Allied Command Transformation (ACT) by Bi- 5. NATO Information Practices Strategic Command (Bi-SC) Directive, 60-70.175 This policy also contains standards of conduct and improper business NATO archives and records are generally inviolable as a practices guidance that is essentially based on ACO rules.176 matter of treaty.166 NATO’s information practices are implemented through North Atlantic Council policy.167 The to enable interoperability, cooperation and more policy mandates proper record keeping and archiving of effective and efficient processes . . . 168 NATO documentation. Three main players factor into (f) Information Assurance . . . (g) Information Needs . . .

165 U.S. DEP’T OF DEF., DIR. 5530.3, INTERNATIONAL AGREEMENTS (11 169 Id. sec. 5, para. 31. June 1987); see also U.S. CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. 2300.01D, INTERNATIONAL AGREEMENTS (5 Oct. 2007). 170 Id. sec. 5, paras. 41 and 42 (“The NATO Archivist’s main responsibilities are the identification of information with permanent value, 166 See, e.g., Ottawa Agreement, supra note 33, art. VII (“The archives of the overall management of the NATO Archives and the implementation of the Organization and all documents belonging to it or held by it shall be the Public Disclosure Policy [PO(90)(Revised), NATO PUBLIC inviolable, wherever located.”); see also Paris Protocol, supra note 34, art. DISCLOSURE POLICY, dated 27 January 1995 (under review)].”). XII (“The archives and other official documents of an Allied Headquarters kept in premises used by those headquarters or in possession of any 171 NORTH ATLANTIC COUNCIL, C-M(2009)0021 (INV), POLICY ON THE properly authorized member of the Headquarters shall be inviolable, unless RETENTION AND DISPOSITION OF NATO INFORMATION (2 Mar. 2009), the Headquarters has waived this immunity.”). available at http://www.nato.int/nato_static/assets/pdf/pdf_archives/201203 27_C-M_2009_0021_INV-Retention_Dispo_of_NATO_Inf.pdf. Also 167 NORTH ATLANTIC COUNCIL POLICY, C-M(2008) 0113 (INV), THE available at https://clovis.hq.nato.int/RC/Basic%20documents/Forms/, PRIMARY DIRECTIVE ON INFORMATION MANAGEMENT (PDIM) annex 1 (18 DanaInfo=clovis.hq.nato.int+NATODocIKM.aspx) (login and password Dec. 2008), available at https://clovis.hq.nato.int/RC/Basic%20documents/ required). Forms/,DanaInfo=clovis.hq.nato.int+NATODocIKM.aspx (login and password required). 172 NATO A-Z, NATO Archives, NORTH ATLANTIC TREATY ORGANIZATION (Dec. 7, 2012), http://www.nato.int/cps/en/natolive/68238.htm. 168 Id. sec. 3, para. 13 articulates key concepts reproduced in part as follows: 173 Id. (“NATO discloses documents related to the Hungarian Revolution in 1956.”). (a) Information is a Corporate Resource . . . (b) Information Ownership and Custodianship. 174 See, e.g., Paris Protocol, supra note 34, art. X. Information shall have an originator, and clearly defined ownership and custodianship assigned 175 BI-STRATEGIC COMMAND DIR. 60-70, BI-STRATEGIC COMMAND throughout its life-cycle; PROCUREMENT DIRECTIVE (22 Dec. 2004) [hereinafter BI-SC Dir. 60-70]; (c) Leadership and Organizational Structure . . . cf. HQ ISAF STANDING OPERATING PROCEDURES 803, ISAF (d) Information Sharing. Information shall be managed PROCUREMENT AND CONTRACTING OPERATIONS (2 Apr. 2011), available with an emphasis on the ‘responsibility to share’ at https://clovis.hq.nato.int/RC/Basic%20documents/,DanaInfo=clovis. balanced by the security principle of ‘need-to-know’, hq.nato.int+SOP_00803_HQISAF.pdf. and managed to facilitate access, optimize information sharing and re-use, and reduce 176 BI-SC Dir. 60-70, supra note 175, para. 2-2; see also ALLIED duplication, all in accordance with security, legal and COMMAND OPERATIONS DIR. 40-7, STANDARDS OF CONDUCT, privacy obligations; RELATIONSHIPS WITH CONTRACTORS, AND DISCLOSURE OF INFORMATION (e) Information standardization. Information shall have (19 Feb. 1992), available at https://clovis.hq.nato.int/RC/Basic%20 standardized structures and consistent representations documents/,DanaInfo= clovis.hq.nato.int+ACE_Dir_%2040_7.pdf (login

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Although not required by NATO regulation, commanders NATO has three types of common funds that are acquired may ask their LEGADs to review the propriety of through the capability package process.185 NATO expenditures for NATO’s version of representation funds Infrastructure Program (NSIP) is the equivalent of known as Official Representation Hospitality funds.177 MILCON; the Military Budget covers low threshold O&M- like requirements; and international manpower funds NATO contracting officers have broad discretion when it requirements related to justified posts.186 In a NATO-led comes to seeking legal advice. Unlike national practice, operation, the Crisis Response Operation Urgent “[n]either ACO/ACT has established a mandatory (e.g., Requirement (CUR) is one way to obtain NATO approval monetary) threshold above which legal review must be and funding of a requirement.187 NATO uses terms such as sought.”178 The guidance admonishes contracting officers to “Minimum Military Requirements,” or “Costs Lie Where seek legal counsel “[e]specially when unusual, complex and they Fall” to deny funding.188 For example, the number of sensitive matters are at hand . . . .”179 This discretion is crisis establishment (CE) posts allocated to a particular mitigated by local SOP: for example, the Joint Warfare contingency limits common funding. Thus, an office that Centre makes the LEGAD a member of the Command has five posts cannot receive funding for a sixth computer Requirements Board ensuring legal oversight at the initiation because that exceeds NATO’s minimum military phase of procurement.180 Local contracting policy, such as requirements. The requirements review board (RRB) that of the Joint Warfare Centre, also sets Established process in NATO is managed by four geographic Financial Limits (EFL), otherwise known to U.S. coordinators. For example, NATO requirements for the practitioners as investment thresholds, for competition Joint Warfare Centre in Norway are processed by JFC purposes for the procurement of “basic, noncomplex Brunssum rather than ACT Norfolk which is that supplies and services.”181 command’s higher headquarters.189

NATO fiscal process also mirrors national practices, but has some unique terminology.182 NATO does not fund per 7. Civilian Personnel Law diem costs that fall on the nations.183 For deployed judge advocates, NATO can fund “costs attributable to more than NATO employs its own permanent workforce known as one nation,” but requires analysis to determine if more than NATO International Civilians (NIC). NATO International one nation actually receives a benefit.184 NATO Financial Civilians are governed by NATO personnel rules set forth in Controllers (FINCON) and CJ8 staff officers are key points the NATO Civilian Personnel Regulations (NCPRs), of contact for NATO fiscal issues. commonly referred to as the “Red Book.” For the purposes of receiving certain privileges and immunities under terms of the NATO SOFA, civilian personnel are part of the “civilian component” of a sending State’s deployed force and password required); ALLIED COMMAND OPERATIONS DIR. 60-54, present in the receiving State.190 Since NICs are hired by ACCEPTANCE OF GRATUITIES (13 Apr. 1988). NATO or its international military headquarters, they are 177 See, e.g., ALLIED COMMAND OPERATIONS DIR. 60-52, OFFICIAL included as members of the “civilian component” by the REPRESENTATION AND HOSPITALITY (17 Feb. 2006) [hereinafter ACO DIR 60-52]; see also HQ ISAF STANDING OPERATING PROCEDURE 801, REPRESENTATION AND HOSPITALITY FUNDS (24 Feb. 2011). 185 BI-STRATEGIC COMMAND DIR. 85-1, INTERIM CAPABILITY PACKAGE DIRECTIVE para. 1.1 (11 June 2007), available at https://clovis.hq.nato.int/ 178 BI-SC Dir. 60-70, supra note 175, para. 1-2d (Legal Advisors). RC/Basic%20documents/,DanaInfo=clovis.hq.nato.int+BI_SC_DIR_85_1.p df (login and password required) (outlining NATO’s three budget lines: 179 Id. “Military Common-Funding Programs are an important aspect of the cooperation amongst Alliance members. NATO’s common resources 180 JOINT WARFARE CENTRE STANDING OPERATING PROCEDURES 600, consist of the NATO Security Investment Programme, the Military Budget, JWC REQUIREMENTS BOARD (JRB): PRIORITIZATION OF INTERNATIONAL and International Manpower.”). MILITARY BUDGET (15 Mar. 2007) (copy on file with JWC Office of the LEGAD). 186 Id.

181 JOINT WARFARE CENTRE STANDING OPERATING PROCEDURES 602, 187 Id. ch. 3. JWC STANDING OPERATING PROCEDURES—PURCHASING AND CONTRACTING EXECUTION (15 Mar. 2007) (copy on file with JWC Office 188 Id. para. 3.4.3 (outlining NATO’s general funding principles). of the LEGAD). 189 Id. para. 2.2.3.a. NATO’s reorganization will change this arrangement 182 See, e.g., ACE DIR. 60-1, CONTROL OF FUNDS (23 Nov. 1982) (e.g., JFC Lisbon’s responsibilities will have to be absorbed by either JFC (incorporating Changes 1 & 2), available at https://clovis.hq.nato.int/ Brunssum, JFC Naples or HQ ACT). RC/Basic%20documents/,DanaInfo=clovis.hq.nato.int+ACE_DIR_60_1.pd f (login and password required). 190 NATO SOFA, supra note 31, art. 1b (“‘Civilian component’ means the civilian personnel accompanying a force of a Contracting Party who are in 183 ACO DIR. 60-50, supra note 100. the employ of an armed service or that Contracting Party, and who are not stateless persons, nor nationals of any State which is not a Party to the 184 See, e.g., HQ ISAF STANDING OPERATING PROCEDURES 815, BUDGET North Atlantic Treaty, nor nationals of, nor ordinarily resident in, the State FUND MANAGERS GUIDE (7 Mar. 2011). in which the force is located.”).

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Paris Protocol.191 The NATO SOFA and Paris Protocol 8. Concepts, Doctrine, and Integration preclude extension of privileges and immunities to Norwegians or other persons who are considered “ordinarily NATO’s approach to the operational art leverages all residents” in Norway (e.g., a lawful resident of Stavanger in tools in the diplomatic, economic, and military sphere to the oil industry who then applies for a NATO position). achieve the desired NATO operational end state. NATO’s Non-Article 5 Crisis Response Operations will raise legal Understanding the legal status of a NATO International issues as a result of cooperation with non-NATO entities.195 Civilian is important because it impacts their operational These operations can include security sector reform, use. For example, NATO deploys civilian personnel to capacity-building, interim governance, restoration of NATO operations as part of its exercise preparations.192 essential services, and military outreach.196 While deployed, NICs may find themselves being excluded from the support of their nation’s deployed national support One of NATO’s doctrinal concepts, the comprehensive element (NSE) because they are not accompanying the approach, has evolved from its counterinsurgency forces (or a civilian component) of a sending State. For birthplace197 and is now reflected in all operational NATO civilians deployed in support of ISAF, the ISAF environments in NATO’s Comprehensive Operational Civilian Human Resources Management Office (CHRMO) Planning Document.198 The “[c]omprehensive approach can provides the equivalent services that a deployed Soldier be described as a means to ensure a coordinated and would find at a national support element (NSE).193 The coherent response to crisis by all relevant actors.”199 NATO NATO LEGAD must, therefore, have working knowledge of doctrine reflects an operational requirement for commanders NATO civilian personnel rules and international agreements to go beyond military solutions.200 LEGADs are key actors governing their status wherever they are utilized.194

195 AJP 3.4A, supra note 21, para. 0209 (illustrating some dilemmas: “Successful civil-military cooperation (CIMIC) requires effective interaction between the NATO-led force and civil parties including 191 Paris Protocol, supra note 34, art. III, para. 1.b (“‘[C]ivilian component’ international, national, and NGOs, and other agencies within the JOA and means civilian personnel who are not stateless persons, nor nationals of any possibly beyond. The parameters for this cooperation will, ideally, be State which is not a Party to the Treaty, nor nationals of, nor ordinarily established between NATO and these organizations and agencies through resident in the receiving State, and who are (i) attached to the Allied official agreements and MOUs established at the highest levels . . . ”). Headquarters and in the employ of an armed service of a Party to the North Atlantic Treaty or (ii) in such categories of civilian personnel in the employ 196 AJP 01(D), supra note 27, ch. 2. of the Allied Headquarters as the North Atlantic Council shall decide.”). 197 AJP 3.4.4, ALLIED JOINT DOCTRINE FOR COUNTERINSURGENCY (COIN) 192 ALLIED COMMAND TRANSFORMATION DIR. 45-4, PERSONNEL (Feb. 2011), available at https://clovis.hq.nato.int/RC/Basic%20 documents SELECTION AND DEPLOYMENT GUIDE FOR NATO MISSIONS (15 Apr. /Forms/,DanaInfo=clovis.hq.nato.int+All%20Doctrines.aspx (login and 2010); see also ALLIED COMMAND OPERATIONS DIR. 50-11, DEPLOYMENT password required). OF CIVILIANS (30 June 2010), available at https://clovis.hq.nsto.int/RC/ Basic%20documents/,DanaInfo=clovis.hq.nato.int+ACT_DIR_45_4.pdf. 198 COPD, supra note 126, annex A, para. 1-4. The author recently produced ACT Advanced Distributed Learning (ADL) online Course Number 137 to provide both legal and policy information to 199 Id. annex A, para. 1-4a n.5. deploying NATO civilians. Judge advocates may apply for access to ACT’s ADL website located at https://jadl.act.nato.int/. 200 AJP-01(D), supra note 27, ch. II, at 2-11 (providing NATO’s Contribution to a Comprehensive Approach). 193 See ISAF Civilian Human Resources Policy and Regulations (CHRPRs) (16 Mar. 2011), available at https://clovis.hq.nato.int/RC/Basic%20 0227. documents/,DanaInfo=clovis.hq.nato.int+ISAF_CHRPRs.pdf (login and password required). The CHRPRs govern the employment of civilians and NATO experiences in Afghanistan, Kosovo and other their general support (including provision of body armor and helmets). operations confirm the complexity of contemporary ISAF possesses unique recruitment authority for civilians who are not crises. Complex crises do not lend themselves to classified as NICs, which is found not only in ISAF CHRPRs but also in simple definition or analysis. Today’s challenges ISAF Standard Operating Procedures (SOP) 119 subject: HQ ISAF demand a comprehensive approach by the Standard Operating Procedures (SOP) 119, Recruitment of International international community, including the coordinated Civilian Consultants (ICC) and Local Civilian Hire (LCH) in Support of the action from an appropriate range of civil and military ISAF Mission (22 Feb. 2011). ALLIED COMMAND OPERATIONS DIR. 45-3, actors, enabled by the orchestration, coordination and ALLIED COMMAND OPERATIONS CRISIS ESTABLISHMENT (CE) de-confliction of NATO’s military and political MANAGEMENT para. 1-7 (10 Mar. 2011) (providing general NATO policy instruments with the other instruments of power. This on theatre authority to establish ICC and LCH positions). needs to be a broader cooperation and planning in accordance with the principles and decisions of 194 MTA, supra note 52 (Annex A sets forth the status of forces relevant senior NATO bodies. NATO’s engagement arrangement); see also the Exchange of Letters between the NATO in a comprehensive approach to crisis management is Secretary General and the Government of the Islamic Republic of focused at three levels: Afghanistan (22 Nov. 2004) (clarifying that “‘NATO Personnel’ means the military and civilian personnel assigned or attached to or employed by the a. At the political and strategic level, NATO North Atlantic Treaty Organization, its member States, and non-NATO concentrates on building confidence and mutual Troop Contributing States that are operating under NATO command and understanding between international actors. control arrangements or in support of the International Security Assistance Force”). b. At the operational level, the priority is to cooperate with other international actors in the overall planning

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in effecting the comprehensive approach, since execution NROLFSM executed ISAF’s rule of law mission in could include negotiation of agreements with international Afghanistan, which included development of evidence-based governments and non-governmental organizations. The operations (EvBO), its commander also executed a national comprehensive approach is demonstrated by the relationship function which included a train, advise, and assist mission at between the participants in civil affairs and civil military the Justice Center in Parwan (JCIP). Both missions required cooperation (what NATO calls CIMIC), Stability significant interaction with host nation authorities (police, Operations, and Rule of Law.201 United States doctrine prosecutors, and courts), interagency partners (U.S. captures this concept as its “whole of government approach” Department of State), and international organizations to operations.202 During the planning process, staff officers demonstrating execution of the comprehensive approach, or should apply “PMESII” analysis rather than the military whole of government approach, to joint operations. decision-making process.203 NATO Rule of Law Field Support Mission posts included One mission that illustrates the execution of the a Danish Deputy Commander and a Dutch Chief of Staff, comprehensive approach is the NATO Rule of Law Field who were both trained as LEGADs. The command also Support Mission-Afghanistan. Between 2011 and included Polish plans officers who were acquired under September 2013, a one-star U.S. judge advocate commanded NATO’s Combined Joint Statement of Requirements the NATO Rule of Law Field Support Mission (NROLFSM) (CJSOR) process. NATO Rule of Law Field Support as a direct reporting unit to Commander of International Mission did not have an organic LEGAD; therefore, NATO Security Assistance Force (COMISAF).204 This NATO legal advice came from the ISAF LEGAD (a U.S. judge command was established to complement the commander’s advocate), while national advice came from the CJIATF 435 national mission that he executed as U.S. Rule of Law Field SJA. Both U.S. and NATO lawyers had to understand Force-Afghanistan (subordinate to Combined Joint when an issue belonged to the national bailiwick or NATO Interagency Task Force (CJIATF) 435).205 While bailiwick: in this context, having NATO authorities gave the commander solutions that were not constrained by national limits (for example, use of NATO common funding vice use for complex operations in which a large degree of of U.S. operations and maintenance funds). civil-military interaction will be required.

c. At the theatre level, NATO force commanders must be empowered to conduct effective cooperation VI. Conclusion and coordination with indigenous local authorities and other international actors in the execution of operations. This article has provided a brief introduction to NATO, its legal authorities, structures, posts, and legal practice. As All 3 levels must function in a complementary a primer for a NATO Legal Advisor, it provided a detailed manner to achieve success. description of the parallel legal universe that NATO

Id. inhabits. U.S. judge advocates have greater opportunities to serve in NATO posts, as NATO executes its fully integrated 201 See, e.g., JP 3-16, supra note 85, ch. III, para. 17 (“Within NATO, CMO multinational mission. As illustrated, NATO legal practice is often referred to as CIMIC. CIMIC refers to “the resources and has many similarities to an assignment to a U.S. Office of arrangements which support the relationship between commanders and the national authorities, civil and military, and civil populations in an area the Staff Judge Advocate, but it is a legal practice that where military forces are or plan to be employed.” Such arrangements occurs in a multinational environment requiring knowledge include cooperation with nongovernmental or international agencies, beyond Service regulations, Department of Defense organizations, and authorities.”). issuances, and Joint doctrine. While NATO’s training and

202 JOINT CHIEFS OF STAFF JOINT PUB. 3-08, INTERORGANIZATIONAL exercise platforms provide practical opportunities to learn COORDINATION DURING JOINT OPERATIONS, at xiii (24 June 2011) (“A about key NATO processes, fiscal realities may prevent the whole-of-government approach integrates the collaborative efforts of the judge advocate from predeployment or TDY-enroute departments and agencies of the USG to achieve unity of effort. Under training. Consequently, this article was aimed at providing unified action, a whole-of-government approach identifies combinations of the full range of available USG capabilities and resources that reinforce readers a better understanding of NATO and the issues that a progress and create synergies.”). U.S. judge advocate may encounter while serving as a NATO LEGAD. 203 See, e.g., JP 5.0, supra note 88, fig.III-5 (articulating PMESII as Political, Military, Economic, Social, Information, and Infrastructure System Analysis).

204 See generally NATO/ISAF SECRET-COMISAF OPERATIONS PLAN (OPLAN) 38302 (REVISION 6 AMENDMENT 2) INTERNATIONAL SECURITY FORCE (ISAF) OPERATIONS IN AFGHANISTAN (Oct. 27, 2012). This source is available at HQ ISAF and HQ IJC CENTRIX websites (classified access only) (stating the mission of NROLFSM).

205 See NATO Media Backgrounder, NATO Rule of Law Field Support http://www.nato.int/nato_static/assets/pdf/pdf_2011_06/20110609- Mission (NFROLFSM), NORTH ATLANTIC TREATY ORGANIZATION, Backgrounder-Rule_of_Law-en.pdf (last visited Oct. 29, 2013).

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Acquisition and Cross-Servicing Agreements in an Era of Fiscal Austerity

* Major Ryan A. Howard

[W]e are joining with allies and partners around the world to build their capacity to promote security . . . [T]he growing capabilities of allies and partners . . . create new opportunities for burden-sharing.1

I. Introduction the Staff Judge Advocate.8 The briefing begins.

As dusk falls on Fort Campbell, you make your way to The S-4’s mission analysis reveals a resource- the brigade headquarters for an urgent mission analysis constrained environment and the potential for a logistics briefing.2 Several hours earlier you learned your brigade shortfall.9 After evaluating the S-4’s contingency plans, was selected to serve as a task force headquarters deploying your commander asks, “Can we trade supplies with to Morocco.3 Members of Al Qaeda in the Islamic Maghreb Moroccan forces? Can they provide us with billeting? Can (AQIM) have crossed the Morocco-Algeria border and we give them meals? What about loaning them our established several camps outside the city of Zag. From this equipment?” The S-3, S-4, and Support Operations Officer base of operations, AQIM coordinates attacks, conducts (SPO) then discuss potential courses of action. Concerned training, and traffics weapons.4 Thus far, Moroccan about the legal implications, the Deputy Commanding counterterrorism operations have failed and it now appears Officer (DCO) asks, “Judge?” You brief that an Acquisition that local Moroccans are joining AQIM cells.5 The task and Cross-Servicing Agreement (ACSA) may offer the force’s mission is to build the capacity of Moroccan forces commander the ability to exchange supplies, services, and to conduct successful counterterrorism operations and support with the Moroccans. At the conclusion of the strengthen the border.6 Having reviewed your higher briefing, the DCO confirms your deliverable and you start headquarters’ order and intelligence products, you identify your legal research.10 your specified, implied, and essential tasks.7 Additionally, you validate your mission analysis and funding source with In an era of fiscal austerity, ACSAs offer commanders a critical means to engage multinational partners in support of tomorrow’s strategic defense challenges. Acquisition and Cross-Servicing Agreements are uniquely suited to enable * Judge Advocate, U.S. Army. Presently assigned as Associate Professor, Contract and Fiscal Law Department, The Judge Advocate General’s Legal commanders to achieve the mission while navigating a Center and School, U.S. Army, Charlottesville, Virginia. The author wishes resource-constrained environment. Acquisition and Cross- to thank the following personnel who assisted in the drafting of this article: Servicing Agreements allow U.S. forces to exchange certain Lieutenant Colonel Charles T. Kirchmaier, Lieutenant Colonel C. Brandon categories of supplies and services with eligible countries Halstead, Major Keirsten H. Kennedy, Captain Marcia Reyes Steward, and 11 Mr. Charles J. Strong. and international organizations. Consequently, Judge

1 Advocates (JAs) must understand both the capabilities and President Barrack Obama, Introduction to U.S. DEP’T OF DEF., limitations of the ACSA program. To that end, this article SUSTAINING U.S. GLOBAL LEADERSHIP: PRIORITIES FOR 21ST CENTURY DEF., at i (2012) [hereinafter 21ST CENTURY DEF. PRIORITIES], available at explores the ACSA program and provides practitioners with http://www.defense.gov/news/Defense_Strategic_Guidance.pdf (last visited a framework for analyzing ACSA transactions in support of Oct. 17, 2013). multinational engagements. 2 See U.S. DEP’T OF ARMY, ARMY DOCTRINE PUB. 5-0, THE OPERATIONS PROCESS para. 34 (17 May 2012); see also U.S. DEP’T OF ARMY, ARMY TACTICS, TECHNIQUES, AND PROCEDURES 5-0.1, COMMANDER AND STAFF OFFICER GUIDE para. 4-25 (14 Sept. 2011) [hereinafter ATTP 5-0.1].

3 See ALEXIS ARIEFF, CONG. RESEARCH SERV., RS21579, MOROCCO: 8 CURRENT ISSUES (30 June 2011), available at http://fpc.state.gov/ National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. documents/organization/168105.pdf (last visited Oct. 17, 2013) (“The 109-163, § 1206, 119 Stat. 3456 (2005) as amended most recently by the United States government views Morocco as an important ally against National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112- terrorism and a free trade partner.”). 239, §1201, 126 Stat. 1632 (2012) (authorizing the Secretary of Defense (SECDEF) to use operations and maintenance funds to “build the capacity 4 In 2010, Moroccan and European authorities disrupted cells linked to Al of a foreign country’s national military forces”).

Qaeda in the Islamic Maghreb (AQIM) that were trafficking cocaine from 9 Algeria through Morocco. Id. at 13. See ATTP 5-0.1, supra note 2, para. 4-26 (“Since no amount of subsequent planning can solve a [mis-] understood problem, mission 5 “Moroccans . . . have joined AQIM at camps in Algeria and elsewhere analysis is the most important step in the [Military Decision Making outside of the country.” Id. Process].”).

6 See generally U.S. DEP’T OF ARMY, ARMY DOCTRINE REFERENCE PUB. 10 JOINT PUB. 1-04, supra note 7, at II-10 (stating JAs should identify “legal 3-07, STABILITY (31 Aug. 2012); U.S. DEP’T OF ARMY, FIELD MANUAL 3- issues impacting operational limitations” and “research applicable 22, ARMY SUPPORT TO SECURITY COOPERATION (22 Jan. 2013). international agreements” as part of mission analysis).

7 JOINT CHIEFS OF STAFF, JOINT PUB. 1-04, LEGAL SUPPORT TO MILITARY 11 10 U.S.C. §§ 2341–2350 (2013). See U.S. DEP’T OF DEF., DIR. 2010.9, OPERATIONS, at II-10 (17 Aug. 2011) [hereinafter JOINT PUB. 1-04] ACQUISITION AND CROSS-SERVICING AGREEMENTS para. E2.1.5 (28 Apr. (identifying the key mission analysis actions for Judge Advocates (JAs)). 2003) [hereinafter DODD 2010.9].

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II. An Overview operating away from their own),” the commander was required to use commercial contracting procedures, and if A. The ACSA that commander wanted to “help a nearby allied unit with some spare parts or ammunitions,” he was forced to “go Acquisition and Cross-Servicing Agreements enable through [foreign military sales] procedures.”19 deployed U.S. forces to acquire and exchange logistic supplies, services, and support (LSSS) with eligible foreign Consequently, Congress enacted the North Atlantic countries and international organizations on a reimbursable Treaty Organization (NATO) Mutual Support Act (NMSA) basis.12 The purpose of an ACSA is to provide commanders of 1979, which simplified the process for exchanging LSSS with a flexible means to exchange logistic support with among NATO countries and U.S. forces.20 Congress multinational forces, particularly during emergencies and streamlined LSSS transactions by exempting these NMSA unforeseen circumstances.13 Without ACSA authority, U.S. acquisitions from numerous provisions of U.S. procurement forces would be required to use formal acquisitions law.21 In the years that followed, Congress modified NMSA procedures to secure LSSS, and they would be prohibited agreements into ACSAs by expanding the eligibility criteria, from transferring LSSS to foreign countries without legislating additional methods of exchange, and broadening reimbursement.14 Through the ACSA program, Congress the categories of support permitted within the program.22 In empowered deployed commanders to address unforeseen 1994, President Clinton signed Presidential Decision logistic needs by exchanging LSSS with multinational Directive 25, directing the U.S. government seek partners.15 reimbursement for LSSS provided in combined exercises and operations.23 Today, the United States has ACSAs with ninety-two countries.24 B. A Retrospective

During the 1970s, the United States dramatically C. ACSA Authorities decreased the number of troops stationed in foreign countries.16 As troop levels decreased, U.S. forces became Acquisition and Cross-Servicing Agreement legislation more dependent on contracting for their logistics support.17 provides two types of authority: acquisition-only authority However, the burdensome processes of formal commercial (AoA) and cross-servicing agreement authority. contracting and foreign military sales impeded logistic support in the field and undermined foreign relations.18 For example, if a U.S. commander wanted to “feed a company of 19 S. REP. NO. 96-842, at 12. Robert W. Komer, the Under SECDEF for U.S. troops in an allied mess hall (because they were Policy, sent a letter to the U.S. Senate Committee on Foreign Relations supporting the NATO Mutual Support Act (NMSA) of 1979, stating that existing law burdened relations with allies by imposing inflexible procedures, mandating allies allow the U.S. to examine their records, and 12 10 U.S.C. §§ 2341–2350 (2013); see DODD 2010.9, supra note 11, para. prohibiting allies from paying gratuities for favorable contractual treatment. E2.1.5. 20 NATO Mutual Support Act of 1979, Pub. L. No. 96-323, 94 Stat. 1016 13 CHAIRMAN, JOINT CHIEFS OF STAFF, JOINT PUB. 4-08, JOINT DOCTRINE (1980). FOR LOGISTICS SUPPORT OF MULTINATIONAL OPERATIONS app. C, para. 2 21 (21 Feb. 2013) [hereinafter JOINT PUB. 4-08]; see also U.S. DEP’T OF 10 U.S.C. § 2343 (2013) (exempting ACSA acquisitions from a number ARMY, DIR. 2012-12, INTERIM ARMY ACQUISITION AND CROSS-SERVICING of requirements); see, e.g., id. § 2304(a) (requiring full and open AGREEMENTS, LIFT AND SUSTAIN, AND FOREIGN ASSISTANCE ACT competition); id. § 2207 (prohibiting gratuities); id. § 2313 (requiring the AUTHORITIES ch. 1, para. 1 (30 Apr. 2012) [hereinafter AD 2012-12], examination of host nation contractor records). available at http://www.apd.army.mil/pdffiles/ad2012_12.pdf. 22 National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 14 See, e.g., 10 U.S.C. § 2304(a) (2013) (requiring full and open 99-661, § 1104a(2), 100 Stat. 3816 (1986) (expanding eligibility from competition); 22 U.S.C. § 2761 (2013) (outlining requirements for foreign NATO countries to non-NATO countries and the UN); National Defense military sales (FMS)). Authorization Act for Fiscal Year 1990, Pub. L. No. 101-189, § 938(a), 103 Stat. 1352 (1989) (authorizing equal value exchange (EVE)); National 15 See generally U.S. FORCES–AFG., PUB. 1-06, MONEY AS A WEAPON Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § SYSTEM AFGHANISTAN 195 (13 Feb. 2012). 1317(h), 108 Stat. 2663 (1994) (authorizing ACSA loans and the exchange of airlift). 16 H.R. REP. NO. 96-612, pt. 1, at 5 (1979) (stating reductions in “tooth-to- tail” ratio resulted in fewer U.S. logistics personnel supporting the North 23 PRESIDENTIAL DECISION DIR. 25 para. 9D (May 3, 1994), available at Atlantic Treaty Organization (NATO)). http://www.clintonlibrary.gov/_previous/Documents/2010%20FOIA/Pres- idential%20Directives/PDD-25.pdf (last visited Oct. 17, 2013) (offering a 17 Id. (stating U.S. forces contracted support to fill the void left by the historical antecedent to the 2012 Def. Strategic Guidance directive to “share personnel reductions); see also Fred T. Pribble, A Comprehensive Look at the burden” with allies). the NATO Mutual Support Act of 1979, 125 MIL. L. REV. 187 (1989). 24 PowerPoint Presentation, J-4 Logistics, Joint Chiefs of Staff, Acquisition 18 S. REP. NO. 96-842, at 2 (1980) (concluding that the acquisition and and Cross-Servicing Agreements Country List (20 Sept. 2013) [hereinafter cross-servicing agreement (ACSA) legislation will be an “important contribution to the smooth functioning of the NATO alliance and eliminate J-4 ACSA PPT], available at https://intellipedia.intelink.gov/wiki/ a needless source of friction between the [United States] and its allies”); Acquisition_and_Cross-Servicing_ Agreements_%28ACSA%29 H.R. REP. NO. 96-612, pt. 1, at 5 (“European allies now state unequivocally (login required). For a current list of ACSAs, see Appendix A (List of that . . . they will no longer provide support under [the existing system].”). Acquisition and Cross-Servicing Agreements).

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Acquisition-only authority authorizes U.S. forces deployed D. Reimbursable Exchanges outside the United States to acquire LSSS from eligible foreign sources.25 The virtue of AoA is speed: this method The virtue of the ACSA program is the flexibility it of acquisition does not require the negotiation of a cross- offers commanders when they or their allied partners servicing agreement.26 Eligible entities include NATO encounter an unexpected logistic requirement. When an countries, NATO subsidiary bodies, the United Nations ACSA is in place, commanders can quickly exchange LSSS (UN), and regional international organizations.27 with allies in one of three ways: payment-in-kind (PIK), Additionally, LSSS may be acquired from non-NATO replacement-in-kind (RIK), and equal value exchange countries, provided the foreign country enjoys a defense (EVE).33 alliance with the United States, stations or homeports U.S. forces or vessels, allows the United States to preposition materiel within its country, or hosts military exercises or 1. Payment-In-Kind other operations.28 Payment-in-kind allows the receiving party to purchase Cross-servicing agreement authority, on the other hand, LSSS from the supplying party by payment in local empowers the Secretary of Defense (SECDEF) to enter into currency.34 For example, if Germany provides the United international agreements with eligible foreign countries and States with 30,000 liters of fuel valued at €50,000, the international organizations for the reciprocal exchange of United States must transmit €50,000 to Germany within 30 LSSS.29 The SECDEF, after consultation with the Secretary days. Payment-in-kind transactions are ideal for of State, may enter into an ACSA with NATO countries, governments who can access and transfer payment in a NATO subsidiary bodies, the UN, regional international timely manner. Suppliers of LSSS should avoid PIK organizations, or non-NATO countries designated by the arrangements when the receiving party will require SECDEF.30 The SECDEF may only designate a non-NATO significant lead time to acquire or transfer currency. country as eligible when he determines such designation is Practitioners should note the purchase of LSSS using PIK is in U.S. national security interests.31 Once the agreement is generally subject to amount limitations.35 in place, U.S. forces in foreign countries may exchange LSSS pursuant to the terms of that agreement. The SECDEF has delegated the eligibility determination to the Under 2. Replacement-In-Kind Secretary of Defense for Acquisition, Technology, and Logistics (USD (AT&L)) and the authority to conclude Replacement-in-kind allows the receiving party to negotiations to Combatant Commanders (CCDR).32 reimburse the supplying party with the same or substantially similar LSSS within one year of the transaction.36 For example, if Germany provides the United States with 30,000 25 10 U.S.C. § 2341 (2013); DODD 2010.9, supra note 11, para. 4.2; liters of fuel valued at €50,000, the United States must return CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR. 2120.01C, ACQUISITION AND 30,000 liters of fuel, or something substantially similar, to CROSS-SERVICING AGREEMENTS encl. A, para. 3 (13 Feb. 2013) Germany within one year.37 Should the United States fail to [hereinafter CJCSI 2120.01C], available at https://intellipedia.intelink.gov/ satisfy their obligation by the deadline, the exchange wiki/ACSA_Laws,_Directives,_%26_Guidance (login required). transaction will automatically convert to a reimbursement 26 DODD 2010.9, supra note 11, para. 4.2.3; CJCSI 2120.01C, supra note transaction, and the U.S. will be required to pay Germany 25, encl. A, para. 3; JOINT PUB. 4-08, supra note 13, app. C, para. 2b (directing the use of acquisition-only authority in the absence of an ACSA). 33 27 O 10 U.S.C. § 2341(1) (2013); DODD 2010.9, supra note 11, paras. 10 U.S.C. § 2344 (2013); D DD 2010.9, supra note 11, para. 4.1.3; 4.2.1.1–4.2.1.2; CJCSI 2120.01C, supra note 25, encl. A, para. 3a. CJCSI 2120.01C, supra note 25, encl. A, para. 4d; see also JOINT PUB. 4- 08, supra note 13, app. C, para. 2c (stating that the supplying party selects 28 10 U.S.C. § 2341(2) (2013); DODD 2010.9, supra note 11, para. 4.2.1.3; the form of reimbursement).

CJCSI 2120.01C, supra note 25, encl. A, para. 3b. See, e.g., Acquisition- 34 Only Agreement, U.S.–Morocco, Feb. 16, 2004 (enabling U.S. forces to U.S. DEP’T OF DEF., REG. 7000.14-R, DOD FIN. MGMT. REG., vol. 11A, order logistic supplies, services, and support while deployed to Morocco for ch. 7, para. 080202A (July 2010) [hereinafter DOD FMR] (requiring Exercise African Lion 2013), available at https://intellipedia. payment within thirty days; the parties may extend this deadline up to intelink.gov/wiki/ACSA_Country_Documents (last visited Oct. 17, 2013) ninety days). (login required). 35 10 U.S.C. § 2347 (2013); DOD FMR, supra note 34, para. 080204 29 10 U.S.C. § 2342(a) (2013); DODD 2010.9, supra note 11, para. 4.3.1; (stating that annual acquisitions from NATO countries are limited to $200 CJCSI 2120.01C, supra note 25, encl. A, para. 4. million and from non-NATO to $60 million; and annual transfers from NATO countries are limited to $150 million and non-NATO countries to 30 10 U.S.C. § 2342(a)(1) (2013); DODD 2010.9, supra note 11, para. 4.3.1; $75 million). But see CJCSI 2120.01C, supra note 25, encl. A, para. 5h(1)– CJCSI 2120.01C, supra note 25, encl. A, para. 4. (3) (stating the limitations apply neither to replacement-in-kind (RIK) and

31 equal value exchange (EVE) transactions, nor during active hostilities and 10 U.S.C. § 2342(b) (2013) (requiring the SECDEF to consult with the contingency operations). SECSTATE and provide congressional notification when designating non- NATO countries eligible for ACSAs); DODD 2010.9, supra note 11, para. 36 DODD 2010.9, supra note 11, para. E2.1.14; DOD FMR, supra note 34, 4.3.2.2; CJCSI 2120.01C, supra note 25, encl. A, para. 4a. para. 080202B.

32 DODD 2010.9, supra note 11, paras. 5.1.2, 5.3.1. 37 DOD-FMR, supra note 34, para. 080202B.

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€50,000. When parties both possess substantially similar Additionally, ACSA authority is further constrained in a supplies (e.g., fuel), RIK transactions offer an efficient number of ways. First, ACSAs may not be used to mechanism for mutual support. However, RIK should be circumvent the foreign military sales process.43 Specifically, avoided when the receiving party will lack the LSSS the Department of Defense (DoD) expressly prohibits U.S required to satisfy the obligation. forces from using ACSAs to acquire or transfer “weapons systems; [the] initial quantities of [certain] replacement and spare parts for [certain] major end items of equipment . . . ; 3. Equal Value Exchange and major end items of equipment.”44 Additionally, U.S. forces are prohibited from acquiring or transferring “guided Equal Value Exchange enables the receiving party to missiles; naval mines and torpedoes; nuclear ammunition repay the supplying party with different goods or services, and included items . . . ; cartridge and propellant-actuated equal to the value of the LSSS originally received, within devices; chaff and chaff dispensers; guidance kits for bombs one year.38 For example, if Germany provides the U.S. with and other ammunition; and chemical ammunition (other than 30,000 liters of fuel valued at €50,000, the United States riot control agents).”45 Second, U.S. forces may not use may satisfy their obligation by giving Germany €50,000 ACSAs to procure LSSS that is reasonably available from worth of ammunition, or other permissible LSSS, within one commercial sources in the United States.46 Third, U.S. year. Equal Value Exchanges are preferred because they forces are prohibited from increasing inventory levels in offer both parties tremendous flexibility. Commanders anticipation of future ACSA transactions.47 Fourth, should consider an EVE when their trading partners are practitioners must remain mindful of fundamental fiscal law likely to face challenges securing currency (i.e., PIK) or limitations. U.S. forces may not order LSSS in the current similar LSSS (i.e., RIK). year for use in a future year (i.e. time) and ACSA transactions must not exceed authorized thresholds (i.e., amount).48 Finally, the international agreement itself may E. Parameters include additional limitations; practitioners must validate that the governing ACSA actually authorizes the The commander’s ability to exchange LSSS has contemplated exchange.49 limitations.39 Acquisition and Cross-Servicing Agreements only allow for the exchange of permissible LSSS: “food, Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § water, billeting, transportation (including airlift), petroleum, 1202, 125 Stat. 1298 (2011) (authorizing ACSA lend authority in oils, lubricants, clothing, communications services, medical Afghanistan through 2014); see also AD 2012-12, supra note 13, ch. 2, para. 2a (delegating this authority to U.S. Central Command). services, ammunition, base operations support . . . storage services, use of facilities, training services, spare parts and 43 CJCSI 2120.01C, supra note 25, encl. A, para. 5f (directing use of FMS components, repair and maintenance services, and air and when appropriate); see also HEADQUARTERS, U.S. SOUTHERN COMMAND, 40 HANDBOOK 700-6, ACQUISITION AND CROSS-SERVICING AGREEMENTS sea port services.” Permissible LSSS also includes para. 2.3 (11 May 2012) [hereinafter SOUTHCOM HB 700-6], available at “temporary use of general purpose vehicles and other https://intellipedia.intelink.gov/wiki/COCOM_ACSA_Directives_%26_Gui nonlethal . . . military equipment which are not designated as dance (login required) (stating that ACSAs are intended to complement, not significant military equipment.”41 Moreover, Congress and replace, FMS); see also The Arms Export Control Act, 22 U.S.C. § 2761 (2013) (outlining FMS); DEF. SEC. COOPERATION AGENCY (DSCA) SEC. the SECDEF have empowered Combatant Commands ASSISTANCE MGMT., MANUAL 5105.38-M, chs. 4–6 (14 Apr. 2013), (CCMDs) to loan significant military equipment to allied available at http://www.samm.dsca.mil/listing/chapters (login required) partners for up to one year in certain circumstances.42 (offering practitioners a guide on the FMS process). 44 DODD 2010.9, supra note 11, para. 4.5.1 (stating ACSAs may not be used when the replacement and spare parts are covered by tables of 38 DODD 2010.9, supra note 11, para. E2.1.6; id. (requiring payment within organization and equipment, tables of allowances and distribution, or one year for EVE transactions). equivalent documents); CJCSI 2120.01C, supra note 25, encl. A, para. 5b1. 39 10 U.S.C. § 2342(a)(2) (2013). 45 DODD 2010.9, supra note 11, para. 4.5.2; CJCSI 2120.01C, supra note 25, encl. A, para. 5b2. 40 Id. § 2350(1); DODD 2010.9, supra note 11, para. E2.1.10; CJCSI 2120.01C, supra note 25, glossary, at GL-4 (defining logistic supplies, 46 10 U.S.C. § 2342(c) (2013); DODD 2010.9, supra note 11, para. 4.4. services, and support (LSSS)); id. encl. A, app. (providing examples of 47 LSSS); see also HEADQUARTERS, U.S. AFRICA COMMAND, MANUAL 10 U.S.C. § 2348 (2013); DODD 2010.9, supra note 11, para. 4.6. 4000.01, STANDARD OPERATING PROCEDURES FOR THE IMPLEMENTATION 48 31 U.S.C. § 1502(a) (2013) (“The balance of an appropriation or fund OF THE ACQUISITION AND CROSS-SERVICING AGREEMENT (ACSA) encl. A limited for obligation to a definite period is available only for payment of (29 Sept. 2009) [hereinafter ACM 4000.01] (providing categories and expenses properly incurred during the period of availability or to complete examples of LSSS), available at https://intellipedia.intelink.gov/ contracts properly made within that period of availability.”); id. § wiki/ACSA_Laws,_Directives,_%26_Guidance (login required). 1341(a)(1)(A) (“An officer or employee of the U.S. Government . . . may 41 not make or authorize an expenditure or obligation exceeding an amount 10 U.S.C. § 2350(1) (2013); DODD 2010.9, supra note 11, para. E2.1.10; CJCSI 2120.01C, supra note 25, glossary, at GL-4 (defining LSSS). available in an appropriation or fund for the expenditure or obligation.”). 49 42 John Warner National Defense Authorization Act for Fiscal Year 2007, CJCSI 2120.01C, supra note 25, encl. A, para. 6g (stating the parties Pub. L. No. 109-364, § 1202, 120 Stat. 2083 (2006), amended by the Ike may not exchange LSSS beyond the geographic limitations of the ACSA or Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. combatant command). For an explanation of how to research and find No. 111-383, § 1203(a), 124 Stat. 4137 (2010), amended by the National ACSAs, see infra Part III.B.

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Returning to our hypothetical, the TF commander’s Documents Library.57 Practitioners should note their intent was clear; he wants the flexibility to exchange controlling ACSA’s expiration date to ensure the exchange supplies with Moroccan forces, should there be a logistics of LSSS throughout the operation.58 shortfall during the operation. Your research confirmed that ACSAs enable commanders to exchange LSSS with eligible After researching the aforementioned resources, you countries to meet logistics shortfalls while deployed.50 You learn that the United States does not have an ACSA in force also learned that ACSA transfers may be satisfied by PIK, with Morocco. You then brief the commander that an RIK, and EVE.51 Finally, you determined that ACSAs have ACSA will meet his desired end-state, but the United States limitations, including: supplies and services must be does not currently have an ACSA in place with Morocco. permissible LSSS, ACSAs may not be used to procure The commander asks, “How do we get one?” supplies commercially available in the United States, and certain items are expressly excluded from the ACSA program (e.g., weapons systems).52 C. Securing an ACSA

Acquisition and Cross-Servicing Agreements are III. A Framework for Analysis international agreements.59 Given this status, both law and policy greatly shape a servicemember’s ability to secure an A. Introduction ACSA. Consequently, practitioners must know the laws, rules, and policies germane to international agreements. You now analyze whether an ACSA would meet the commander’s intent: (1) Does the commander’s logistics As a preliminary matter, the DoS must be consulted needs concern permissible LSSS? and (2) Does the prior to negotiating and concluding an international commander want the ability to acquire LSSS or does he agreement.60 To this end, the DoS established the Circular desire the flexibility to exchange LSSS? 53 In this case, an 175 procedure (C-175 procedure), which provides guidance ACSA is appropriate because the commander wants to to the Executive Branch concerning “the negotiation, exchange permissible LSSS. Your research continues—does conclusion, reporting, publication, and registration of U.S. the United States have an ACSA with Morocco? treaties and international agreements.”61

Additionally, DoD personnel are prohibited from B. Researching ACSAs negotiating international agreements absent written approval from a DoD official with proper authority.62 Negotiation The United States enjoys ACSAs with approximately ninety-two countries and an additional eighty-one countries 57 are eligible.54 When researching ACSAs, practitioners have Int’l and Operational Law Division Documents Library, JAGCNET, https://www.jagcnet2.army.mil/IODocLib (last visited Oct. 17, 2013) (login numerous resources, including: the U.S. Department of required). 55 56 State (DoS) Treaties in Force, the Intelink ACSA Portal, 58 and the JAGCNET International and Operational Law See, e.g., Acquisition and Cross-Servicing Agreement, U.S.–Afg., para. IX, Feb. 16, 2004, available at https://intellipedia.intelink.gov/wiki/ACSA_ Country_Documents (login required) (terminating the ACSA ten years after the date the last party signs the agreement). 59 CJCSI 2120.01C, supra note 25, glossary, at GL-3 (stating that cross- servicing agreements are international agreements under U.S. DEP’T OF 50 10 U.S.C. §§ 2341–2350 (2013); DODD 2010.9, supra note 11, para. DEF., DIR. 5530.3, INT’L AGREEMENTS para. E2.1.1 (11 June 1987) E2.1.5. [hereinafter DODD 5530.3]). See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 301 (1987) [hereinafter RESTATEMENT 3D FOREL] 51 10 U.S.C. § 2344 (2013); DODD 2010.9, supra note 11, para. 4.13; (defining an international agreement as “an agreement between two or more CJCSI 2120.01C, supra note 25, encl. A, para. 4d. states or international organizations that is intended to be legally binding 52 and is governed by international law”); CHAIRMAN, JOINT CHIEFS OF STAFF, DODD 2010.9, supra note 11, paras. 4.4, 4.5.1, and E2.1.10. INSTR. 2300.01D, INT’L AGREEMENTS para. 5 (5 Oct. 2007). 53 SOUTHCOM HB 700-6, supra note 43, app. D. 60 Case-Zablocki Act, 1 U.S.C. § 112b (2013). See also RESTATEMENT 3D 54 J-4 ACSA PPT, supra note 24. FOREL, supra note 59, § 311 cmt. b (stating the SECSTATE enjoys full power to negotiate and conclude international agreements in the President’s 55 U.S. DEP’T OF STATE, TREATIES IN FORCE: A LIST OF TREATIES & name; clarifying that other departments are required to consult with the OTHER INT’L AGREEMENTS OF THE U.S. IN FORCE ON JANUARY 1, 2012 SECSTATE even when granted authority to negotiate); DODD 5530.3, (2012), available at http://www.state.gov/s/l/treaty/tif/index.htm (last supra note 59, para. 7 (outlining the DoD implementation of the Case- visited Oct. 17, 2013) (login required) (providing a list of treaties and Zablocki Act). international agreements as of 1 January 2012). 61 U.S. DEP’T OF STATE, FOREIGN AFF. MANUAL VOLUME 11—POLITICAL 56 Acquisition and Cross-Servicing Agreements, INTELINK, AFFAIRS 720, 721 (Sept. 25, 2006) available at http://www.state.gov/m/a/ https://intellipedia.intelink.gov/wiki/Acquisition_and_Cross-Servicing dir/regs/fam/11fam/index.htm. _Agreements_%28ACSA%29 (last visited Oct. 17, 2013) (login required) (offering researchers ACSA country documents, education materials, and 62 Logan Act, 18 U.S.C. § 953 (2013); DODD 5530.3, supra note 59, para. field references). 8.2.

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includes forwarding a draft agreement or communicating an Chairman’s Legal Counsel.72 The J-4 then sends the request offer to a foreign government’s representative with such to the Office of the USD (AT&L), who ultimately makes the specificity that acceptance would result in forming an ACSA eligibility determination.73 After the USD (AT&L) agreement;63 however, preliminary and exploratory reviews the request and coordinates with the Under discussions are not considered negotiation.64 In sum, Secretary of Defense for Policy and the DoD General servicemembers risk violating federal law when they Counsel, the USD (AT&L) consults with the DoS.74 communicate to their foreign counterpart an interest in Provided the Office of the Secretary of Defense (OSD) securing an ACSA. supports the designation, the USD (AT&L) then notifies Congress.75 If the 30-day congressional notification period Returning to our hypothetical, you know the expires without objection, the USD (AT&L) will notify the commander wants an ACSA; you also know task force Joint Staff/J4, who then notifies the CCMD that the foreign personnel are not authorized to negotiate an international government or international organization is designated agreement—to do so would violate federal law.65 eligible.76 Accordingly, you brief the staff sections regarding ACSA- related communications with the Moroccans. You then Back at Fort Campbell, your request for assistance to forward a request for assistance to the U.S. Africa Command AFRICOM yielded favorable results: Morocco was (AFRICOM) Office of Legal Counsel. They advise “there is designated eligible in 1988.77 Given that Morocco is a two-part process for securing an ACSA: eligibility and eligible, the task force now only requires the negotiation of negotiation.” the international agreement. You brief your commander and recommend requesting AFRICOM negotiate and conclude an ACSA with Morocco. Additionally, you recommend 1. Eligibility requesting AoA to ensure the task force is able to purchase LSSS from the Moroccans in the event the ACSA is To secure an ACSA, the country or organization must untimely.78 The task force commander approves your first be declared eligible.66 NATO countries and its recommendations to request ACSA and AoA, and reminds subsidiary bodies, as well as the UN, are already eligible.67 you, “The task force deploys in 120 days.” For non-NATO countries, the SECDEF is authorized to make an eligibility determination based on U.S. national security interests.68 The Joint Staff/J-4 has established a 2. Negotiation process for securing eligibility determinations.69 First, the task force must request their CCMD nominate the foreign Congress granted the SECDEF the authority to enter country or international organization.70 The CCMD will into ACSAs with eligible foreign countries and international then review the request and nominate the foreign country or organizations after consultation with the DoS.79 In international organization for designation as eligible.71 furtherance of congressional intent, the DoS authorized the

After the CCMD forwards the nomination, the Joint Staff/J-4 forwards the request to the J-5 and the Office of the 72 Id. encl. C, para. 5e.

73 O 63 D DD 2010.9, supra note 11, para. 5.1.2; CJCSI 2120.01C, supra note DODD 5530.3, supra note 59, para. E2.1.2 (stating the document’s title is 25, encl. B, para. 2a(2). not dispositive: a document may still be an international agreement even when the title does not include the word “agreement”). 74 DODD 2010.9, supra note 11, para. 5.1.2; CJCSI 2120.01C, supra note 25, encl. B, para. 2a(1); supra note 25, encl. C, para. 5f. 64 Id. 75 O 65 D DD 2010.9, supra note 11, para. 4.3.2 (stating the USD(AT&L) Logan Act, 18 U.S.C. § 953 (2013); DODD 5530.3, supra note 59, para. notifies the Senate Armed Services and Foreign Relations Committees; and 8.2. the House Armed Services and International Relations Committees); CJCSI 66 DODD 2010.9, supra note 11, para. 4.1. 2120.01C, supra note 25, encl. B, para. 2a(1) & encl. C, para. 5f. 76 67 10 U.S.C. §§ 2342(a)(1)(A)–(C) (2013); DODD 2010.9, supra note 11, CJCSI 2120.01C, supra note 25, encl. C, paras. 5d, 5g (stating para. 4.3.1. practitioners should allow a minimum of sixty days for the eligibility determination). 68 10 U.S.C. §§ 2342(a)(1)(D), 2342(b) (2013). 77 Memorandum from Frank Carlucci, SECDEF, to the Chairman of the 69 CJCSI 2120.01C, supra note 25, encl. C, para. 5. Joint Chiefs of Staff and Assistant SECDEF, subject: NATO Mutual

70 Support Act (NMSA) Designations (29 Mar. 1988), available at DODD 2010.9, supra note 11, para. 5.3 (delegating nominating authority https://www.intelink.gov/inteldocs/action.php?kt_path_info=ktcore.actions. from the SECDEF to the Chairman of the Joint Chiefs of Staff (CJCS)); document.view&fDocumentId=194870 (last visited Oct. 10, 2013) CJCSI 2120.01C, supra note 25, encl. B, para. 2i(7) (delegating nominating (declaring Morocco eligible for ACSA negotiations) (login required). authority to the Combatant Commanders (CCDRs)). 78 71 10 U.S.C. § 2341 (2013); DODD 2010.9, supra note 11, para. 4.2; CJCSI CJCSI 2120.01C, supra note 25, encl. C, para. 5 (outlining the 2120.01C, supra note 25, encl. A, para. 3. requirements for Combatant Command (CCMD) nominations, including a CCMD legal review, and emphasizing the minimum processing time of 79 10 U.S.C. § 2342(a) (2013) (requiring consultation with, but not sixty days). concurrence by, the SECSTATE).

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SECDEF to negotiate and conclude ACSAs.80 The SECDEF (i.e., CCMD review).88 The ACSA PM may request the then delegated this authority to the Chairman of the Joint Joint Staff informally review the draft agreement.89 The Chiefs of Staff (CJCS), who further delegated the authority parties then agree to the ACSA ad referendum.90 to CCDRs.81 The ACSA PM then forwards the agreement to the Joint ACSA negotiations start with the CCMD preparing a Staff/J-4 formally requesting authority to conclude the draft agreement.82 When the DoS empowered the DoD to agreement.91 The Joint Staff/J-4 forwards the request to the negotiate and conclude ACSAs, they required the DoD use a OUSD (AT&L) directorate for International Cooperation model agreement when drafting the ACSA.83 If the draft (OUSD (AT&L)/IC), who in turn sends the request through ACSA substantially deviates from the model agreement, the the OSD for legal, policy, and financial reviews.92 The Joint Staff, OSD, and DoS will likely review the draft OUSD (AT&L)/IC then forwards the request to the DoS for document.84 Consequently, deviating from the model consultation and issues a memorandum to the Joint Staff agreement will result in delays. either granting or declining the request to conclude the agreement.93 If the USD (AT&L)/IC grants authority to After drafting the agreement, the CCMD ACSA conclude the agreement, the Joint Staff/J4 will delegate this Program Manager (PM) organizes a negotiating team, authority to the CCDR.94 consisting at a minimum of the ACSA PM (who serves as the lead negotiator) and legal counsel.85 The ACSA PM After receiving authority, the ACSA PM will forward then coordinates with the U.S. country team, forwards a the approved English and translated versions of the draft agreement to his foreign counterpart, and conducts agreement to the foreign country or international negotiations.86 If the foreign country or international organization.95 At this point, practitioners should note that organization requests substantive changes to the draft the foreign country may require internal approval or an agreement, the ACSA PM will note the specific reasons for exchange of diplomatic notes.96 Generally, the ACSA PM modification and contact the Joint Staff/J-4.87 After will conduct a signing ceremony where the CCDR and negotiations conclude, each party will staff the draft foreign representative sign and conclude the ACSA.97 While agreement for approval within their respective organizations neither the DoS nor DoD have mandated a minimum signature level, the United States and foreign signatories should be of “approximately equal rank or position.”98 Finally, practitioners must refer to their CCMD’s local 80 Memorandum from John Hillen, Assistant Sec’y of Political-Military policies governing signing ceremonies.99 Affairs, to Robert Joseph, Under Sec’y of State for Arms Control & Int. Sec. Affairs (July 11, 2006) [hereinafter DoS Joseph Memo] (granting the Assistant Secretary of Political Military Affairs the authority to empower In sum, negotiating an ACSA is a process that requires the DoD to conclude ACSAs, provided the DoD does not deviate from the significant lead time (i.e., more than 100 days) because the model template). ACSA PM must both negotiate laterally with his foreign 81 DODD 2010.9, supra note 11, para. 5.3.1 (delegating the authority to negotiate and conclude ACSAs to the CJCS); DODD 2010.9, supra note 11, 88 Id. encl. C, para. 6c(4). para. 5.6.2 (authorizing the CJCS to delegate the authority to negotiate and conclude ACSAs to the CCDRs); CJCSI 2120.01C, supra note 25, encl. B, 89 Id. encl. C, para. 6d–e (directing ACSA PMs to resubmit agreements to paras. 2d(2), 2i(2) (directing CCDRs to negotiate ACSAs when authorized foreign governments when the Joint Staff directs modifications).

by the CJCS). See also AD 2012-12, supra note 13, ch. 2, para. 3 (30 Apr. 90 2012) (prohibiting CCDRs from further delegating authority). Id. encl. C, para. 6c(3) (stating ad referendum means “the agreement . . . is subject to staffing and approval”). 82 CJCSI 2120.01C, supra note 25, encl. C, para. 6a(1). 91 Id. encl. C, para. 6f(1) (requiring a CCMD J-4 memorandum requesting 83 DoS Joseph Memo, supra note 80, tab 1 (enclosing the ACSA 2006 authority to conclude the agreement, a copy of the agreement noting negotiation template). departures from the template, and a CCMD legal review). 84 CJCSI 2120.01C, supra note 25, encl. C, para. 6a(2). See also DoS 92 Id. encl. C, para. 6f(2).

Joseph Memo, supra note 80, at 2 (requiring approval by the Under 93 Secretary of State for Arms Control and International Security Affairs when Id. encl. C, para. 6f(3) (requiring consultation, not concurrence). a draft ACSA substantially deviates from the model agreement). 94 Id. encl. C, para. 6g. 85 CJCSI 2120.01C, supra note 25, encl. C, para. 6b (stating the ACSA 95 Id. encl. C, para. 6h. Program Manager (PM) may also seek support from the CCMD J5, Joint staff, service component commands, or the U.S. country team). 96 Roger Golden Address, supra note 86. 86 Id. encl. C, para. 6c. See also Roger S. Golden, Office of Int’l 97 CJCSI 2120.01C, supra note 25, encl. C, para. 6i.

Cooperation, Under Sec’y of Def. for Acquisition, Tech., and Logistics, 98 Address at the 2012 ACSA Worldwide Conference: Negotiation Issues Id. encl. C, para. 6i(1). (June 4, 2012) [hereinafter Roger Golden Address], available at 99 See, e.g., HEADQUARTERS, U.S. AFRICA COMMAND, INSTR. 4000.01, https://intellipedia.intelink.gov/wiki/ACSA_Conf_2012_Briefs (found on UTILIZING ACQUISITION AND CROSS-SERVICING AGREEMENTS encl. C, website under Briefs, OSD) (recommending the ACSA team maintain para. 2(a)(2) (29 Sept. 2009) [hereinafter ACI 4000.01], available at accurate records of all negotiations because the process can take years, https://intellipedia.intelink.gov/wiki/COCOM_ACSA_Directives_%26_Gui forcing negotiators to leave actions to their successors). dance (login required) (withholding signature authority to the commander, 87 CJCSI 2120.01C, supra note 25, encl. C, para. 6c(2). U.S. AFRICOM).

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counterpart and staff the agreement vertically through the LSSS pursuant to an ACSA.”104 Unlike ACSAs, the orders CCMD, Joint Staff/J-4, OSD, and DoS.100 Logisticians and themselves are not international agreements.105 While JAs should identify ACSA requirements as early as ACSAs enable parties to exchange LSSS, they do not possible.101 require parties to fill orders received from one another.106 Generally, LSSS transfers occur on an individual basis, but Returning to our hypothetical, AFRICOM is acting on orders may be open-ended when the quantity or time frame your request for assistance. First, AFRICOM confirms with is undefined.107 Additionally, practitioners should the Joint Staff/J-4 that they have the authority to negotiate familiarize themselves with local policy, as each CCDR has with the Moroccans. The AFRICOM ACSA PM then published authority governing ACSA orders within their coordinates the drafting of an ACSA using the DoS model areas of responsibility.108 There are three types of orders: agreement. The ACSA PM forwards the draft agreement to transfer for cash (i.e., PIK), exchange of similar or different the Moroccans and, with the assistance of his ACSA team, LSSS (i.e., RIK or EVE), and loans. conducts negotiations. After both the CCDR and the Moroccans approve the draft agreement ad referendum, the ACSA PM forwards the agreement through Joint Staff/J-4 to 1. Transfer for Cash (i.e., PIK) OUSD (AT&L)/IC. The USD (AT&L)/IC grants authority to conclude the agreement and the Joint Staff/J-4 delegates When exchanging currency for LSSS, logisticians first this authority to the CCDR. Subsequently, the CCDR define the type, timing, and quantity of the requirement.109 concludes the agreement at the signing ceremony. The CCMD ACSA PM, in coordination with legal and Approximately 100 days after receiving the request, contracting, will validate that the governing ACSA allows AFRICOM secures your ACSA just prior to the deployment. for the transfer of the contemplated LSSS.110 When acquiring LSSS, the ACSA PM must ensure that the desired “goods or services are not reasonably available from U.S. D. Exchanging LSSS: Orders and Transfers commercial sources,” and that the transaction supports U.S. national interests and the commander’s end-state.111 The You are now deployed to a cooperative security location ACSA PM and their foreign counterpart then negotiate the (CSL) east of Tan Tan airport. While attending a battle terms of the order.112 Negotiations should address “type, update brief, the S-4 informs the commander that Moroccan quantity, delivery location and schedule, billing information, forces have requested our support. Given their strained supply lines, the Moroccans request meals, fuel, and several anti-tank guided missile systems (i.e., BGM-71 TOWs). 104 CJCSI 2120.01C, supra note 25, glossary, at GL-4. The S-4 also advises that a number of our task force vehicles 105 are in need of maintenance services beyond what the task DODD 5530.3, supra note 59, para. E2.1.1.3.7; CJCSI 2120.01C, supra note 25, encl. D, para. 4b(3)(a) (stating orders are binding international force can provide. The S-4 recommends leveraging the commitments).

ACSA to provide the requested support to the Moroccans in 106 exchange for maintenance services to our vehicles. The AD 2012-12, supra note 13, ch. 2, para. 5. commander turns to you and says, “Judge?” You advise that 107 CJCSI 2120.01C, supra note 25, encl. D, para. 5a, 5c (reminding the BGM-71 TOWs are guided missile systems and may not practitioners to not obligate funds beyond the period of availability for open-ended orders). be transferred under the ACSA.102 You then recommend approval of the remaining portion of the exchange. The 108 See ACI 4000.01, supra note 99; HEADQUARTERS, U.S. CENTRAL commander approves your recommendation. COMMAND, REG. 700-1, MULTINATIONAL LOGISTICS SUPPORT BETWEEN THE U.S. AND GOVERNMENTS OF COUNTRIES WITHIN THE USCENTCOM AREA OF RESPONSIBILITY (19 Apr. 2006), available at Once the ACSA is in place, the parties generally have https://intellipedia.intelink.gov/wiki/COCOM_ACSA_Directives_%26_Gui all the authority necessary to exchange LSSS.103 An ACSA dance (last visited Oct. 17, 2013) (login required); U.S. EUROPEAN order is “a written request, in an agreed upon format and COMMAND, DIR. 60-8, LOGISTICS SUPPORT USING ACQUISITION AND CROSS-SERVICING AGREEMENTS (19 Sept. 2001) [hereinafter ED 60-8], signed by an authorized individual, for the provision of available at https://intellipedia.intelink.gov/wiki/COCOM_ACSA_ Directives_%26_Guidance (last visited Oct. 17, 2013) (login required); HEADQUARTERS, U.S. PACIFIC COMMAND, INSTR. 0602.1, MUTUAL 100 James A. Teaford, Multinational & Interagency Division, J-4 Logistics, LOGISTIC SUPPORT BETWEEN THE U.S. AND THE GOVERNMENTS OF OTHER Joint Chiefs of Staff, Address at the 2012 ACSA Worldwide Conference: ELIGIBLE COUNTRIES (7 Oct. 2007), available at https ACSA 101 (May 22, 2012), available at https://intellipedia.intelink.gov/wiki/COCOM_ACSA_Directives_%26_Gui dance (login required); SOUTHCOM HB 700-6, supra note 43. https://intellipedia.intelink.gov/ wiki/ACSA_Conf_2012_Briefs (login required). 109 CJCSI 2120.01C, supra note 25, encl. D, para. 4a(1).

101 JOINT PUB. 4-08, supra note 13, ch. III, para. 4b. 110 Id. encl. D, para. 4a(1)(a). 102 The BGM-71 TOW, a guided missile system, is expressly excluded 111 Id. encl. D, para. 4a(1)(b) (stating practitioners should consider from the ACSA program. DODD 2010.9, supra note 11, para. 4.5.2; CJCSI timeliness, costs, purpose, and location when determining if LSSS is 2120.01C, supra note 25, encl. A, para. 5b(2). reasonably available from U.S. commercial sources). 103 AD 2012-12, supra note 13, ch. 2, para. 3. 112 Id. encl. D, para. 4a(2).

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and price of LSSS to be transferred.”113 Generally, parties counterparts negotiate the ACSA transaction. 122 In contrast should agree to a firm fixed price.114 to the terms negotiated in PIK transactions, the parties negotiate value rather than price and the form of The parties begin the transaction by populating the reimbursement.123 Again, the parties initiate the ACSA required order form as directed by the governing ACSA.115 transaction by completing an ACSA order form.124 The The ACSA Global Automated Tracking and Reporting ACSA PM must ensure the order contains an estimate of the System (AGATRS) enables ACSA PMs to order, track, value of the LSSS to be transferred.125 For U.S.-provided manage, and report their ACSA transactions.116 After the support, the ACSA PM will coordinate with a subordinate order form is completed and signed by both parties, a command for the LSSS, who will then deliver the LSSS binding international commitment is formed.117 Having from the logistics elements inventory or contracted completed the ACSA order, the supplying organization then vendor.126 After validating delivery and acceptance of the coordinates for the LSSS.118 For U.S-provided support, the LSSS, the ACSA PM will forward the completed form to the ACSA PM will coordinate with the subordinate commands resource element of the subordinate command pending for LSSS from the supply system or private vendors.119 The reimbursement by the foreign government.127 Upon receipt ACSA PM then validates delivery and acceptance by the of the RIK or EVE reimbursement, the ACSA PM will foreign country or international organization.120 The ACSA annotate the order and notify the RM.128 In the event the PM forwards the completed ACSA order form to the receiving party defaults, the order is processed as a cash subordinate command’s resource managers (RM) for billing reimbursement transaction.129 and collection.121

3. Loan of LSSS for Cash, RIK, or EVE 2. Transfer for Similar LSSS (i.e., RIK) or Different LSSS (i.e., EVE) Finally, LSSS may be loaned in exchange for cash, RIK, or EVE.130 Again, the process is similar. After defining the When providing LSSS in exchange for RIK or EVE, a requirement, the parties negotiate the terms.131 Unlike other similar process is followed. Logisticians first define the exchanges, parties seeking to loan LSSS must address “the requirement, and the ACSA PM and their foreign value of LSSS to be loaned or leased, and the costs and terms of the loan or lease.”132 The ACSA PM will initiate the transaction, order the LSSS, coordinate delivery, verify acceptance, and ensure reimbursement.133 The ACSA PM 113 Id.; DOD FMR, supra note 34, para. 0806 (outlining reciprocal and non- reciprocal pricing methods). completes the transaction by verifying that the loaned items are returned in sound condition.134 If the returned LSSS is 114 CJCSI 2120.01C, supra note 25, encl. D, para. 4a(2)(a) (stating the serviceable, the ACSA PM will contact the RMs and ACSA PM should include a “not to exceed” amount when the parties are unable to agree on a firm fixed price). 115 Id. encl. D, para. 4a(3)(a). See Appendix B (Standard ACSA Order 122 CJCSI 2120.01C, supra note 25, encl. D, para. 4b(1). Form). 123 Id. encl. D, para. 4b(2)(a). 116 CJCSI 2120.01C, supra note 25, encl. A, para. 5k (stating the ACSA 124 Global Automated Tracking and Reporting System is the DoD ACSA Id. encl. D, para. 4b(3)(a). system of record for the OSD, Joint Staff, and CCMDs); see also DODD 125 Id. encl. D, para. 4b(3)(b). 2010.9, supra note 11, para. 5.6.8 (requiring CCMDs to submit quarterly ACSA reports to the CJCS); DOD FMR, supra note 34, para. 080403A 126 Id. encl. D, para. 4b(4)–(5).

(requiring CCMDs to provide “not later than the 15 days after the end of the 127 preceding fiscal quarter, a detailed report, by fiscal year, for each . . . Id. encl. D, para. 4b(5), 4b(6) (stating the receiving party is generally agreement entered into . . . itemized by transaction”). required to reimburse the responsible command within one year of delivery). 117 CJCSI 2120.01C, supra note 25, encl. D, para. 4a(3)(a) (stating these 128 actions form a binding international commitment, not an international Id. encl. D, para. 4b(6). agreement). When the United States receives LSSS for payment-in-kind 129 Id. encl. D, para. 4b(7). Accordingly, practitioners should secure a fund (PIK), the service component must secure a fund certification before site even though RIK and EVE transactions do not require one. Id. encl. D, signing the ACSA order form. Id. encl. D, para. 4a(3)(b). When the United para. 4b(3)(b). States transfers LSSS for PIK, the order form must contain the fund site of the burdened account for reimbursement. Id. encl. D, para. 4a(3)(b). 130 Id. encl. D, para. 4c. 118 Id. encl. D, para. 4a(4)(a). 131 Id. encl. D, para. 4c(1)–(2).

119 Id. encl. D, para. 4a(4) (directing practitioners consult U.S. DEP’T OF 132 Id. encl. D, para. 4c(2).

DEF., REG. 4500.9-R, DEF. TRANSPORTATION REG. (Nov. 2010) when 133 seeking support from U.S. Transportation Command). Id. encl. D, para. 4c(3); id. encl. D, para. 4a(3)–(6) (stating the ACSA PM will implement the PIK process, outlined above in Part II.D.1, when 120 Id. encl. D, para. 4a(5)(a); encl. D, app. A. loaning LSSS for cash); id. encl. D, para. 4b(3)–(6) (stating the ACSA PM

121 will implement the RIK or EVE process, outlined above in Part II.D.2, Id. encl. D, para. 4a(6) (stating the RM will forward the action to the when loaning LSSS for RIK or EVE). organization identified in the ACSA for billing and collection; and the billing element will forward a bill to the foreign country’s payment office). 134 Id. encl. D, para. 4c(4).

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document the return.135 If the returned items are not supplies.147 Finally, the ACSA PM completes the order serviceable, the ACSA PM will build an estimate to repair or form in AGATRS documenting delivery and acceptance.148 replace the LSSS, and the RMs will generate a bill and You met the commander’s desired end-state: the task force collect reimbursement.136 successfully exchanged LSSS with the Moroccans to address a logistics shortfall. Back at the CSL near Tan Tan airport, the commander has made his decision: coordinate the trade—provide meal and fuel support to the Moroccans in exchange for vehicle IV. Conclusion maintenance. First, the S-4 forwards the requirement to the AFRICOM ACSA PM, addressing the type, timing, and As the United States navigates an era of fiscal austerity, quantity of vehicle maintenance.137 The ACSA PM, in national security threats continue to emanate from states coordination with legal, then validates that the U.S.- with “[w]eakened or diminished counterterrorism Moroccan ACSA allows for the exchange of food, fuel, and capabilities, border control mechanisms, [and] internal vehicle maintenance.138 Additionally, the ACSA PM security priorities . . .”149 As a result, the U.S. national ensures that U.S. commercial sources are not reasonably defense strategy requires a leaner force that develops partner available to provide vehicle maintenance in light of capacity and promotes burden-sharing.150 ACSAs are timeliness, cost, and location.139 Next, the ACSA PM critical to this endeavor. confirms that the required vehicle maintenance promotes the commander’s desired end-state and promotes U.S. Thus, ACSAs enable commanders to meet U.S. national interests.140 The ACSA PM, on behalf of the task force, then defense goals in a fiscally constrained environment by negotiates the terms of the order with the Moroccans, exchanging support with multinational partners. The JA addressing “type, quantity, delivery location and schedule, familiar with ACSAs is uniquely situated to support the billing information, and value of LSSS to be transferred.”141 commander’s desire to satisfy logistics requirements in a legal, flexible, and efficient manner. To that end, this article The ACSA PM builds the order in AGATRS, using the outlined the purpose and limitations of ACSAs, and value of the LSSS rather than price.142 He then signs and provided practitioners with an overview of the ACSA forwards the order to his Moroccan counterpart for process from negotiation to acquisition. Acquisition and signature.143 The ACSA PM also secures a fund site in the Cross-Servicing Agreements offer a critical burden-sharing event of default.144 After both parties have signed the order, opportunity at a moment in history when the United States it becomes a binding international commitment.145 The says to her allies, “We can share what we got of yours, ACSA PM orders the fuel and meals from AFRICOM.146 ‘cause we done shared all of mine.”151 He then tracks delivery, receipt, and acceptance of the

135 Id. encl. D, para. 4c(4)(a). 136 Id. encl. D, para. 4c(4)(b); AD 2012-12, supra note 13, ch. 1, para. 6a. 137 CJCSI 2120.01C, supra note 25, encl. D, para. 4b(1) (citing encl. D, para. 4a(1)(a)–4a(1)(c)). 138 Id. encl. D, para. 4a(1)(b) (requiring validation that the ACSA authorizes the proposed LSSS); id. encl. A, app. (stating food, fuel, and vehicle maintenance are permissible LSSS). 139 Id. encl. D, para. 4a(1)(b) (directing practitioners to consider timeliness, 147 Id. encl. D, para. 4b(5)(b). costs, purpose, and location when determining if “the goods are reasonably 148 available from U.S. commercial sources”). Id. encl. D, para. 4b(5)(b). The ACSA PM sends the completed order form to the USARAF resource managers (RMs) for filing pending 140 Id. encl. D, para. 4a(1)(b). reimbursement. Id. encl. D, para. 4b(5)(b). As the Moroccans provide

141 maintenance services, the ACSA PM notifies the RMs and updates the Id. encl. D, para. 4b(2). See also DOD FMR, supra note 34, para. 0806; invoice. Id. encl. D, para. 4b(6). SOUTHCOM HB 700-6, supra note 43, at 5 (stating LSSS should be 149 valued using the pricing guidance in the DOD FMR and, in light of market Worldwide Threat Assessment of the U.S. Intelligence Cmty: Statement surveys, compared with previous purchases and with independent U.S. for the Record Before the S. Select Comm. on Intelligence, 113 CONG. 4 Government estimates). (Mar. 12, 2013), available at http://www.dni.gov/index.php/newsroom/

142 testimonies/194-congressional-testimonies-2013/816-statement-for-the- ACM 4000.01, supra note 40, encl. B; CJCSI 2120.01C, supra note 25, record-worldwide-threat-assessment-of-the-u-s-intelligence-community encl. D, para. 4b(3)(b). (statement of James R. Clapper, Dir. of National Intelligence). 143 CJCSI 2120.01C, supra note 25, encl. D, para. 4b(3)(a). 150 21ST CENTURY DEF. PRIORITIES, supra note 1, at 3 (“Building 144 Id. encl. D, para. 4b(3)(b). partnership capacity [around] the world [is] important for sharing the costs and responsibilities of global leadership.”). 145 Id. encl. D, para. 4a(3)(a) (an order is not an international agreement). 151 GRATEFUL DEAD, Jack Straw, on EUROPE 72 (Warner Brothers Records 146 Id. encl. D, para. 4b(4)(a). 1972).

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Appendix A

List of Acquisition and Cross-Servicing Agreements

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Appendix B

Standard ACSA Order Form

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Little America: The War Within the War for Afghanistan1

Reviewed by Major Temi Anderson*

Anyone who said you can go from full-on combat to transition in two years wasn’t being realistic . . . [T]he lesson is that these things are going to take a lot of time and a lot of treasure.2

I. Introduction explanation regarding key points. In his closing chapters, the author finally explains that counterinsurgency is In the wake of what many journalists perceived as failed profitable, but is a fiendishly difficult strategy to implement strategy in Iraq, war correspondents chronicled numerous effectively in the short term. Counterinsurgency requires a lessons learned by military leaders and diplomats.3 Seeing malleable military, effective civilian advisers, and sage an opportunity to continue this legacy in what many refer to policy-makers.7 Little America illustrates that those as the “good war,”4 Washington Post Correspondent Rajiv fundamentals were not always present in Afghanistan. Chandrasekaran followed the story of the 2009 Afghanistan surge.5 The author provides readers with valuable insight Little America is divided into three parts: Grand into the complex world of twenty-first century Dreams, Shattered Plans, and Triage. In eighteen chapters counterinsurgency and lets readers decide whether the surge consisting of over 360 pages and a prologue, paid off.6 In furtherance of this goal, the author captivates Chandrasekaran follows military leaders, State Department readers with the rich details of various interview accounts officials, and various war cabinet members through disparate from battlefield leaders. Chandrasekaran uses his paths that ultimately led them to Afghanistan. He experience as a journalist to pen Little America. This demonstrates how their varied experiences shaped the way journalist approach, however, runs the risk of losing readers they viewed the path to success in the longest American war along the way because the author provides little independent in history.8

The title of the book signals the author’s thesis. “Little * Judge Advocate, U.S. Army. Presently assigned as Associate Professor, Administrative and Civil Law Department, The Judge Advocate General’s America” refers to attempts by the U.S. Agency for the Legal Center and School, Charlottesville, Virginia. International Development (USAID) to improve agriculture in the southern Afghanistan province of Helmand from 1950 1 RAJIV CHANDRASEKARAN, LITTLE AMERICA: THE WAR WITHIN THE to 1970.9 The United States invested over 21 million dollars WAR FOR AFGHANISTAN (2012). in an effort to woo Afghanistan from a looming Soviet 10 2 Id. at 320. This quote from a field grade officer illustrates one of the key influence and strengthen the Afghan-U.S. partnership. issues the author finds with the 2009 surge: a short engagement is not Expatriate developers planned to create a massive irrigation profitable in a volatile country. The author supports instead a longer, project in Lashkar Gah, Helmand’s desert capital.11 Locals concomitant military, and economic commitment to restoring public faith in the government. Id. started calling the area “Little America” because the development featured stately western-style homes and stores 3 See RAJIV CHANDRASEKARAN, GREEN ZONE: IMPERIAL LIFE IN THE filled with American conveniences like Coca-Cola.12 The EMERALD CITY (2010); see also THOMAS E. RICKS, FIASCO: THE agricultural project eventually ran aground because it lacked AMERICAN MILITARY ADVENTURE IN IRAQ, 2003 TO 2005 (2006).

4 George Friedman, Al Qaeda, Afghanistan and the Good War, FOREIGN POL’Y ASS’N, http://www.fpa.org/topics_info2414/topics_info_show.htm? doc_id=670946 (last visited Oct. 15, 2013). 7 Id. at 1-24 to 1-28.

5 M.J. WILLIAMS, THE GOOD WAR: NATO AND THE LIBERAL CONSCIENCE 8 Thomas Nagorski, Editor's Notebook: Afghan War Now Country’s IN AFGHANISTAN (2011). President Barack Obama signed orders to deploy Longest, ABC NEWS (June 7, 2010), http://abcnews.go.com/Politics/afghan- 30,000 more troops to Afghanistan in late 2009. CHANDRASEKARAN, supra war-now-longest-war-us-history/story?id=10849303. note 1, at 128. See also Afghanistan Profile, BBC NEWS SOUTH ASIA (Oct. 15, 2013), http://www.bbc.co. uk/news/world-south-asia-12024253 (offer- 9 CHANDRASEKARAN, supra note 1, at 18–23. The project was designed to ing a historical timeline of events in Afghanistan). Chandrasekaran harness the raging waters of the majestic Hindu Kush River, routing them to previously wrote a successful book about reconstruction challenges in Iraq. the Helmand valley to support agricultural fields with an elaborate network CHANDRASEKARAN, supra note 3. of canals. Id. The original engineer firm failed to conduct thorough soil analysis that would have uncovered the fact that Helmand farmland was 6 U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY shallow and that below it laid an impermeable layer of subsoil. Id. As a glossary (15 Dec. 2006) [hereinafter FM 3-24]. Counterinsurgency (COIN) result, water pooled on the surface when farmers irrigated their land. Id. consists of “those military, paramilitary, political, economic, psychological, The remaining salt in the soil stunted the growth of anything that farmers and civic actions taken by a government to defeat insurgency.” Id. Political planted. Id. power is a key aim of counterinsurgency. Id. at 1-1. Both insurgents and counterinsurgents seek to gain the good will of the people by demonstrating 10 Id. that their form of government is in the best position to address issues that are important to them. Id. Long-term success in COIN depends on the 11 Id. at 29. people “taking charge of their own affairs and consenting to the government’s rule.” Id. 12 Id. at 23–28.

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preliminary soil analysis.13 The story of “Little America” is fresh approach encourages readers to experience more than a subtle history lesson for readers. Afghanistan through the eyes of fascinating characters Chandresekaran believes that like “Little America,” the carefully selected by the author, but also risks losing readers coalition’s efforts in Afghanistan will ultimately prove in detailed stories that are frequently not organized, fruitless because once again, America underestimated the chronological, or logical. The remedy would have been time and requirements necessary for success. simple. Readers would benefit from a road map and timeline in the beginning of his work. This supplemental Readers comfortable with a text book format may be material would have given readers a better sense of the big surprised, as this book departs from the product-based picture, literary plan, and purpose of each chapter in relation approach found in traditional scholarly works.14 The author to the author’s goals in telling the story of Little America.18 neither provides an explicit thesis nor spoon-feeds readers As a well established reporter, Chandrasekaran clearly his main points. Instead, Chandrasekaran simply refers to embraces the storytelling structure of journalism using the Helmand agricultural project from the outset and revisits individual accounts in support of his main points. However, the subject as he introduces various characters throughout it is difficult to evaluate his points unless one can assess the the book.15 The implication is that like this unfulfilled credibility of each source. This review explores how endeavor, the current attempt to quickly stabilize Chandrasekaran’s journalism-based writing style impacts his Afghanistan will also prove fruitless. The author’s implied argument, the benefits readers gain from this approach, and thesis is that short term intervention in Afghanistan is the lessons military leaders can glean from Little America. pointless because it does not remedy the core problem of the area: corruption. Corruption in the Afghan government and military serve as major roadblocks in the quest to garner II. The Impact of Journalism on Scholarly Writing lasting public support for civic entities. Little America is clearly the result of countless hours of Rather than using an introduction or preface to orient field research in Afghanistan. In the Notes section, the reader to the book’s methodology, the author uses Chandrasekaran explains that he gained direct access to colorful vignettes and “vivid imagery . . . to set the stage.”16 confidential State Department and presidential conversations The author uses “descriptive chapter titles” in lieu of by conducting seventy original interviews for this book.19 carefully constructed points.17 This forces readers to Chandrasekaran traveled to southern Afghanistan over a extrapolate lessons from the voluminous vignettes. This dozen times to report on the Afghanistan surge for the Washington Post from February 2009 to July 2011, but the 13 Id. at 29. Notes section provides a rather incomplete list of sources to 20 support key facts. Endnotes are fine; however, they should 14 Chunling Sun & Gouping Feng, Process Approach to Teaching Writing be comprehensive so that readers do not question the Applied in Different Teaching Models, 2 ENG. LANGUAGE TEACHING 150, veracity of each account while reading the book. The target 150–51 (Mar. 2009), available at www.ccsenet.org/journal/index.php/elt/ article/view/350/315. A product-based approach to writing includes a fixed audience likely includes readers with some military or linear design that the writer imitates. Id. This traditionally includes an diplomatic experience. Their backgrounds will cause them introduction, thesis, and conclusion organized in a logical or coherent to think more critically about the accuracy of accounts. fashion. Id. A process-based approach places emphasis on the progression of writing, rather than a fixed linear approach. Id. This is communication- based instruction (like story-telling), as opposed to communicative For example, in part two of the book, “Shattered Plans,” pedagogy. Unlike the product approach, which is more centered on the Chandrasekaran provides a fascinating inside account of a written outcome or proving a thesis, the process approach focuses on the 2010 Mardi Gras party at the U.S. embassy in Kabul that thinking process involved in writing. Id.

15 CHANDRASEKARAN, supra note 1, at 18–23.

16 Major Evan R. Seamone, Book Review, The Fourth Star: Four Generals 18 Chandrasekaran does provide an under-inclusive map of Afghanistan to and the Epic Struggle for the Future of the United States Army, ARMY help orient readers to the area. The author also includes several LAW., Apr. 2011, at 1, 38. This review of Little America followed the same photographs that improve a reader’s understanding of some key actors. Id. methodology that Major Seamone used in reviewing The Fourth Star at xi. (2009), as the author of The Fourth Star, similar to Chandrasekaran, also used vignettes to construct his points. 19 Id. at 339. The author relies on primary sources mostly and does a good job remaining well within the scope of the 2009 surge. Id. The author also 17 Id. Part One of the book is called “Grand Dreams,” for example. The mentions that he obtained information from government documents chapters within in it, “An Enchanting Time,” “Stop the Slide,” released by Wikileaks, an Internet-based anti-secrecy group. Id. “Marinestan,” and “The Wrong Man,” describe how Afghanistan was full of hope in the 1950s as the United States invested in a massive agricultural 20 Id. For example, the author fails to cite the source from which he gained a project only to find that the plan was flawed. CHANDRASEKARAN, supra direct quote delivered by General McChrystal during a speech to more than note 1. “Stop the Slide” fast forwards to June 2009 where the top Marine one hundred top Afghan and U.S. officers prior to a major operation in Commander in Afghanistan, Brigadier General Larry Nicholson, Marja. Id. at 140. The author need not provide readily accessible footnotes begrudgingly implemented the Army’s COIN strategy to prevent escalating imbedded in the text to satisfy readers’ curiosity. Endnotes are appropriate, violence rather than his preferred approach of searching for and destroying but should be detailed enough to account for key facts upon which the enemy. Id. Chandresekaran relies.

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“almost ended all parties.”21 Bored and underutilized, personnel often looked for an escape from the controlling embassy officials resorted to alcohol as a social lubricant.22 atmosphere of Kabul in limited social opportunities like the Inebriated partygoers unable to access one of only two Mardi Gras party.31 The Mardi Gras incident demonstrates restrooms urinated outdoors.23 In response, the U.S. that the coalition lacked a centralized body that could both ambassador to Kabul sent the two American male offenders direct participating states and discipline actors for not home, but a Turkish ambassador remained because he was complying with strategic goals of the coalition. Providing outside the reach of State Department officials.24 This background information regarding the command structure account leaves readers wondering how the author can verify among coalition partners would help readers reach this event when the majority of partygoers were probably too Chandrasekaran’s conclusion that U.S. and NATO leaders inebriated to give an accurate account of others’ activities. would benefit from a centralized command structure to The author neither refers to the Turkish embassy official and maintain greater command and control of personnel and the two American embassy officials by name, nor does he operations.32 list the source of the disciplinary account. Chandrasekaran apparently relies on a reporter’s privilege to protect his source, but including more account details would improve A. Reporter’s Privilege the believability of the account.25 Like many reporters, Chandrasekaran apparently relies While the content of the vignette may seem trivial, the upon a reporter’s privilege to conceal important sources used author misses a key opportunity to provide strong evidence to establish a vast array of subthemes throughout the book.33 that supports one of his subthemes—the United States did As a result, Little America assumes that readers will rely not use some USAID and State Department personnel upon the accuracy of pivotal witness accounts without the efficiently; as a result, commanders missed key benefit of substantiation. The problem with this approach is opportunities to improve diplomatic relationships with that if readers are unwilling to take this leap of faith and Afghan leaders.26 The author recognizes that diplomatic accept the veracity of witness accounts, they will not grasp relationships are necessary to successfully mentor strong vignette points necessary to support his primary theme. Afghan leaders—a key component of COIN strategy.27 The author suggests that a weak support structure for Afghan What is reporter’s privilege? Many states have adopted leaders diminished their credibility among Afghans and statutes that grant reporters unqualified protection from impacted U.S. military success.28 Another subtheme the divulging confidential information and a qualified privilege author suggests is that civilian personnel were a key for nonconfidential information.34 These statutes, commonly ingredient in the surge. Bureaucratic issues, however, often referred to as reporter’s privilege, support the First made it difficult to both secure talented personnel and match Amendment right to freedom of expression.35 In New York, them with jobs that took advantage of their skill sets.29 for example, Subsection (b) of Civil Rights Law § 79-h Rather than deploying embassy officials to the field to creates an “absolute privilege with respect to any develop public-private partnerships in support of diplomatic information, including the identity of a source, conveyed to a relations, a disproportionate number remained on the tightly guarded “prison compound” of Kabul, attending numerous 31 meetings and drafting countless memos.30 Dejected Id.; see contra id. at 184 (documenting the balanced account of Carter Sahib, a successful State Department representative in Garmser, who contradicts the author’s assertion that some State Department personnel were underutilized). 21 Id. at 178. 32 The author does a fair job of explaining the command relationship 22 Id. between U.S. forces and the Marines, citing the fact that the Marine brigade commander reported to a three-star Marine general at U.S. Central 23 Id. Command instead of the top Army Commander in Afghanistan, General McChrystal. Id. at 212. The book, however, does not explain the command 24 Id. structure between NATO assets like Great Britain.

25 Id. at 358. The author does not cite the source in his notes. 33 Id. at 339 (“I have chosen not to cite my interviews, the documents and e-mails I received, and public comments of senior officials. I do, however, 26 Id. at 188–89. indicate where I have used details gleaned from specific State Department cables and other government documents that were released on the Internet 27 FM 3-24, supra note 6, at 1-22. by the antisecrecy group WikiLeaks.”). Id.

28 CHANDRASEKARAN, supra note 1, at 318. 34 Laura R. Handman Esq. et al., New York—Privilege Compendium, REP. COMM. FOR FREEDOM OF THE PRESS, http://www.rcfp.org/new-york- 29 Id. at 172–73 (observing how State Department personnel who wanted to privilege-compendium/i-introduction-history-background (last visited Oct. work in the field outside the U.S. embassy compound in Kabul were often 15, 2013). As of 2011, thirty-six states and the District of Columbia assigned to desk jobs in Kabul, while personnel who wanted desk jobs were adapted various reporter’s privilege statutes. Id. A growing question is the sent to remote Afghan provinces to advise combat commanders). scope of the privilege in the age of blogging and internet dissemination. Id.

30 Id. at 174. 35 Id.

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reporter in confidence.”36 Reporters comfortable with a In some chapters, Chandrasekaran combats this issue by progeny of court cases supporting this privilege in criminal providing a concluding paragraph that summarizes key and civil proceedings openly apply this rule to other points; however, this practice is not consistent. The closing communications like newspaper articles and books.37 The chapters are the most insightful as the author emerges to goal of the privilege is to “increase the flow of information discuss key takeaways. A preface and introduction geared in circumstances in which society wishes to encourage open toward providing a roadmap of the author’s key points communication.”38 Scholarly work is a form of would serve as a better compromise for future readers. communication. However, scholarly or historical works While a journalist’s inside account is helpful, readers would possess conventions that demand “complete accuracy.”39 also benefit from the clarity that a list of characters would Applying the privilege to scholarly works may discount the provide. This list would allow readers to remember key author’s message. Readers questioning the truth of each players and their roles in the coalition effort. account may lose focus on critical lessons as they meander through these detailed vignettes. Fellow journalist Steve Coll did this well in Ghost Wars, a novel recounting the history of covert wars in Afghanistan that fueled Islamic militancy.43 Coll also relies B. Immersion Journalism on first-hand accounts from key personnel but uses a well- written prologue to clearly explain his thesis and the Journalists who immerse themselves in the environment structure of his argument. He further provides a list of maps, they cover offer readers a unique opportunity to live through principle characters, and a detailed notes section to the experiences of themselves and others. Some journalists substantiate key interview accounts. Chandrasekaran would prefer to immerse themselves in the lives of their subjects so have been well served in following Coll’s example. that they can reenact their lives instead of simply rendering a report of a sociological study.40 Immersion journalists like Chandrasekaran engage in the activity that they want to III. Lessons for Military Leaders and Judge Advocates write about to gain an inside look at the subject.41 This writing style includes the journalist in the story, allowing Beyond its commentary on the interaction of civilian readers to discover new insights into familiar topics. Some and military leadership in Afghanistan, Little America journalists have a little trepidation about “how visible they delivers fresh insight44 that reveals the complexity of want to be in their own book” and often let the subject speak building a winning campaign. Three main points that this for itself.42 This approach has merit, but leaves readers with reader gleaned make the book a worthwhile read and little interpretive guidance regarding the purpose and summarize a key lesson learned—“great powers can lose direction of each vignette. Readers are left to fend for small wars.”45 themselves in the rich details of multiple accounts simply because the author wants to prevent himself from becoming part of the story. A. Develop a Project Organization with Clearly Defined Roles

First, with regard to defining small wars, Little America 36 Id. The author published Little America in New York. CHANDRASEKARAN, supra note 1, at unmarked page. reveals that in coalition engagements, strong powers can experience the toll of war against a fluid insurgency and 37 Laura Katherine Layton, Defining “Journalist”: Whether and How A within their organization if they do not establish clearly Federal Reporter’s Shield Law Should Apply to Bloggers, NAT’L L. REV. defined roles.46 Judge advocates can assist by ensuring that (Mar. 16, 2011), http://www.natlawreview.com/article/defining-journalist- whether-and-how-federal-reporter-s-shield-law-should-apply-to-bloggers#_ edn1. See also Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151 (1987) (criminal investigation) (noting reporters have unqualified protection 43 STEVE COLL, GHOST WARS: THE SECRET HISTORY OF THE CIA, from having to divulge confidential information and qualified privilege for AFGHANISTAN, AND BIN LADEN, FROM THE SOVIET INVASION TO nonconfidential information). SEPTEMBER 10, 2011, at xvii –17 (2005).

38 Id. 44 The author provides fresh insight by allowing readers to observe the surge from the perspective of actors on the ground in Afghanistan rather than 39 Seamone, supra note 16, at 39 (quoting RICHARD D. BANK, THE second hand accounts they may have received from the news. EVERYTHING GUIDE TO WRITING NONFICTION 210 (2010)). 45 Lieutenant Colonel Robert M. Cassidy, The and 40 ROBIN HEMLEY, A FIELD GUIDE FOR IMMERSION WRITING: MEMOIR, Counterinsurgency: The Salience of Military Culture, MIL. REV. 53 (May- JOURNALISM, AND TRAVEL 73 (U. Ga. Press 2012) (stating that fact-based June 2005), available at http://www.army.mil/professionalWriting/volumes/ scholarly writing often examines issues from the outside looking in, like a volume3/november_2005/11_05_2.html. study). 46 CHANDRASEKARAN, supra note 1, at 152–54. The author portrays the 41 Id. at 55. Marines and Colonel Harry Tunnell’s brigade as units that embraced combat more than counterinsurgency. Id. In doing so, the author shows that 42 Id. at 74. without defining roles for your subordinates, the effort may win small battles, but ultimately lose complex objectives. Id. Strong powers

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 41

commanders are aware of the legal obligations they have to efforts to maintain economic security in villages led Afghans various organizations outside the military (i.e., non- to cultivate poppy in support of the Taliban.50 This forced governmental organizations and State Department officials U.S. and Afghan forces into battles to regain previously held operating within their area of operations) as well as their territory. Throughout the surge, military leaders repeatedly own subordinates. Leaders can also use this lesson to battled the issue of failed economic security and its effects develop organized systems and defined roles within the on stabilization efforts.51 Through this example, teams they manage. Brigade Judge Advocates can ensure Chandrasekaran demonstrates that every part of the team is that they win small wars by ensuring that they utilize important and team members must be held to the same paralegals’ technical expertise effectively to streamline the standard. Leaders who hold parties responsible will spend legal review process. This management technique will not less time trying to engage in damage control over weak only improve response time for commanders, but will also areas. ensure that every member of the team is used, valued, and well synchronized. This approach helps prevent the fracture that Chandrasekaran describes among State Department, IV. Concluding Thoughts coalition forces, and USAID officials. Military leaders will find Little America a thought- provoking and invigorating account on multiple levels. B. Eliminate Finger-Pointing and Public Fights Chandrasekaran’s passion for the subject matter emanates from each vignette carefully designed to glorify battlefield Second, Little America illustrates how the organization leaders that he deeply respects. As a professional journalist, can benefit when leaders demonstrate a unified front.47 The the author offers a balanced approach while documenting author points out that when General Petraeus assumed key deficiencies in multiple government agencies that command of Afghanistan, he improved the relationship exposed the war within the U.S. effort. Despite the between civilians and the military by stopping public detracting reliance on a journalistic writing style, the book bickering.48 General Petraeus quickly realized that cohesion offers a unique perspective on the 2009 surge in Afghanistan among departments made America stronger on the and provides valuable lessons for military officers and judge international stage. The key take-away for leaders is that advocates who are deploying to Afghanistan. If you are Soldiers have a greater sense of purpose when they feel the looking for an engaging book that offers key lessons before command message is consistent. Positive leadership breeds you deploy, Little America is a must-read. productivity and compliance.

C. Hold Team Members Accountable for Delivery

Finally, Chandrasekaran repeatedly demonstrates how corruption in the Karzai regime and a lazy, self-interested Afghan Army harmed stabilization efforts.49 The Karzai regime did little to stop the drug trade, and failed coalition

experience the toll of war when they begin to lose momentum. Without a synchronized effort at the brigade and division level, strategic objectives can be more difficult to achieve.

47 Id. at 221 (explaining that when General Petraeus assumed command of Afghanistan, he improved the relationship between civilians and the military by stopping public bickering).

48 When General Petreaus assumed command in Afghanistan, Ambassador Eikenberry, a top State Department official, told him that President Karzai was ready to endorse a controversial U.S.-backed program to expand armed 50 Id. at 107. village-level defense forces. Id. Consequently, General Petraeus mentioned it in his first meeting with President Karzai. Id. According to 51 Chandrasekaran points out that the United States would establish security witnesses, President Karzai “went through the roof” and delivered a long in certain sectors, but then lose it to the Taliban within the next two years and embarrassing lecture to General Petraeus about Afghanistan’s history of due to the failure of addressing the importance of economic stability. Id. at unruly militias. Id. This led General Petraeus and his aides to blame 106–107. For example, in sectors where security was established, Bush-era Ambassador Eikenberry for misreading President Karzai. In public, officials destroyed Afghan poppy fields, which were used to produce however, the two leaders demonstrated a unified front. Id. General opium, a key source of funding for the Taliban. Destruction of the fields Petraeus ordered subordinates to stop the trash talk. Id. Ambassador hurt poor farmers, who became indebted to drug brokers because they Eikenberry instructed his staff to improve cooperation with the military. Id. accepted cash up-front to cultivate poppy for the Taliban. Poor farmers became perfect Taliban recruits who used the day wages they earned to 49 Id. at 141–42, 318. repay their debt and remain in contact with the Taliban, causing the previously secured sector to fall back into Taliban control. Id.

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CLE News

1. Resident Course Quotas

a. Attendance at resident continuing legal education (CLE) courses at The Judge Advocate General’s Legal Center and School, U.S. Army (TJAGLCS), is restricted to students who have confirmed reservations. Reservations for TJAGSA CLE courses are managed by the Army Training Requirements and Resources System (ATRRS), the Army-wide automated training system. If you do not have a confirmed reservation in ATRRS, attendance is prohibited.

b. Active duty servicemembers and civilian employees must obtain reservations through their directorates training office. Reservists or ARNG must obtain reservations through their unit training offices.

c. Questions regarding courses should be directed first through the local ATRRS Quota Manager or the ATRRS School Manager, Academic Department at (800) 552-3978, extension 3172.

d. The ATTRS Individual Student Record is available on-line. To verify a confirmed reservation, log into your individual AKO account and follow these instructions:

Go to Self Service, My Education. Scroll to ATRRS Self-Development Center and click on “Update” your ATRRS Profile (not the AARTS Transcript Services).

Go to ATTRS On-line, Student Menu, Individual Training Record. The training record with reservations and completions will be visible.

If you do not see a particular entry for a course that you are registered for or have completed, see your local ATTRS Quota Manager or Training Coordinator for an update or correction.

e. The Judge Advocate General’s School, U.S. Army, is an approved sponsor of CLE courses in all states that require mandatory continuing legal education. These states include: AL, AR, AZ, CA, CO, CT, DE, FL, GA, ID, IN, IA, KS, KY, LA, ME, MN, MS, MO, MT, NV, NH, NM, NY, NC, ND, OH, OK, OR, PA, RI, SC, TN, TX, UT, VT, VA, WA, WV, WI, and WY.

2. Continuing Legal Education (CLE)

The armed services’ legal schools provide courses that grant continuing legal education credit in most states. Please check the following web addresses for the most recent course offerings and dates:

a. The Judge Advocate General’s Legal Center and School, U.S. Army (TJAGLCS).

Go to: https://www.jagcnet.army.mil. Click on the “Legal Center and School” button in the menu across the top. In the ribbon menu that expands, click “course listing” under the “JAG School” column.

b. The Naval Justice School (NJS).

Go to: http://www.jag.navy.mil/njs_curriculum.htm. Click on the link under the “COURSE SCHEDULE” located in the main column.

c. The Air Force Judge Advocate General’s School (AFJAGS).

Go to: http://www.afjag.af.mil/library/index.asp. Click on the AFJAGS Annual Bulletin link in the middle of the column. That booklet contains the course schedule.

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3. Civilian-Sponsored CLE Institutions

For additional information on civilian courses in your area, please contact one of the institutions listed below:

AAJE: American Academy of Judicial Education P.O. Box 728 University, MS 38677-0728 (662) 915-1225

ABA: American Bar Association 750 North Lake Shore Drive Chicago, IL 60611 (312) 988-6200

AGACL: Association of Government Attorneys in Capital Litigation Arizona Attorney General’s Office ATTN: Jan Dyer 1275 West Washington Phoenix, AZ 85007 (602) 542-8552

ALIABA: American Law Institute-American Bar Association Committee on Continuing Professional Education 4025 Chestnut Street Philadelphia, PA 19104-3099 (800) CLE-NEWS or (215) 243-1600

ASLM: American Society of Law and Medicine Boston University School of Law 765 Commonwealth Avenue Boston, MA 02215 (617) 262-4990

CCEB: Continuing Education of the Bar University of California Extension 2300 Shattuck Avenue Berkeley, CA 94704 (510) 642-3973

CLA: Computer Law Association, Inc. 3028 Javier Road, Suite 500E Fairfax, VA 22031 (703) 560-7747

CLESN: CLE Satellite Network 920 Spring Street Springfield, IL 62704 (217) 525-0744 (800) 521-8662

ESI: Educational Services Institute 5201 Leesburg Pike, Suite 600 Falls Church, VA 22041-3202 (703) 379-2900

44 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485

FBA: Federal Bar Association 1815 H Street, NW, Suite 408 Washington, DC 20006-3697 (202) 638-0252

FB: Florida Bar 650 Apalachee Parkway Tallahassee, FL 32399-2300 (850) 561-5600

GICLE: The Institute of Continuing Legal Education P.O. Box 1885 Athens, GA 30603 (706) 369-5664

GII: Government Institutes, Inc. 966 Hungerford Drive, Suite 24 Rockville, MD 20850 (301) 251-9250

GWU: Government Contracts Program The George Washington University Law School 2020 K Street, NW, Room 2107 Washington, DC 20052 (202) 994-5272

IICLE: Illinois Institute for CLE 2395 W. Jefferson Street Springfield, IL 62702 (217) 787-2080

LRP: LRP Publications 1555 King Street, Suite 200 Alexandria, VA 22314 (703) 684-0510 (800) 727-1227

LSU: Louisiana State University Center on Continuing Professional Development Paul M. Herbert Law Center Baton Rouge, LA 70803-1000 (504) 388-5837

MLI: Medi-Legal Institute 15301 Ventura Boulevard, Suite 300 Sherman Oaks, CA 91403 (800) 443-0100

MC Law: Mississippi College School of Law 151 East Griffith Street Jackson, MS 39201 (601) 925-7107, fax (601) 925-7115

NAC National Advocacy Center 1620 Pendleton Street Columbia, SC 29201 (803) 705-5000

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NDAA: National District Attorneys Association 44 Canal Center Plaza, Suite 110 Alexandria, VA 22314 (703) 549-9222

NDAED: National District Attorneys Education Division 1600 Hampton Street Columbia, SC 29208 (803) 705-5095

NITA: National Institute for Trial Advocacy 1507 Energy Park Drive St. Paul, MN 55108 (612) 644-0323 (in MN and AK) (800) 225-6482

NJC: National Judicial College Judicial College Building University of Nevada Reno, NV 89557

NMTLA: New Mexico Trial Lawyers’ Association P.O. Box 301 Albuquerque, NM 87103 (505) 243-6003

PBI: Pennsylvania Bar Institute 104 South Street P.O. Box 1027 Harrisburg, PA 17108-1027 (717) 233-5774 (800) 932-4637

PLI: Practicing Law Institute 810 Seventh Avenue New York, NY 10019 (212) 765-5700

TBA: Tennessee Bar Association 3622 West End Avenue Nashville, TN 37205 (615) 383-7421

TLS: Tulane Law School Tulane University CLE 8200 Hampson Avenue, Suite 300 New Orleans, LA 70118 (504) 865-5900

UMLC: University of Miami Law Center P.O. Box 248087 Coral Gables, FL 33124 (305) 284-4762

UT: The University of Texas School of Law Office of Continuing Legal Education 727 East 26th Street Austin, TX 78705-9968

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VCLE: University of Virginia School of Law Trial Advocacy Institute P.O. Box 4468 Charlottesville, VA 22905

4. Information Regarding the Judge Advocate Officer Advanced Course (JAOAC)

a. The JAOAC is mandatory for an RC company grade JA’s career progression and promotion eligibility. It is a blended course divided into two phases. Phase I is an online nonresident course administered by the Distributed Learning Division (DLD) of the Training Developments Directorate (TDD), at TJAGLCS. Phase II is a two-week resident course at TJAGLCS each January.

b. Phase I (nonresident online): Phase I is limited to USAR and Army NG JAs who have successfully completed the Judge Advocate Officer’s Basic Course (JAOBC) and the Judge Advocate Tactical Staff Officer Course (JATSOC) prior to enrollment in Phase I. Prior to enrollment in Phase I, students must have obtained at least the rank of CPT and must have completed two years of service since completion of JAOBC, unless, at the time of their accession into the JAGC they were transferred into the JAGC from prior commissioned service. Other cases are reviewed on a case-by-case basis. Phase I is a prerequisite for Phase II. For further information regarding enrolling in Phase I, please contact the Judge Advocate General’s University Helpdesk accessible at https://jag.learn.army.mil.

c. Phase II (resident): Phase II is offered each January at TJAGLCS. Students must have submitted all Phase I subcourses for grading, to include all writing exercises, by 1 November in order to be eligible to attend the two-week resident Phase II in January of the following year.

d. Regarding the January 2014 Phase II resident JAOAC, students who fail to submit all Phase I non-resident subcourses by 2400 hours, 1 November 2013 will not be allowed to attend the resident course.

e. If you have additional questions regarding JAOAC, contact MAJ T. Scott Randall, commercial telephone (434) 971- 3368, or e-mail [email protected].

5. Mandatory Continuing Legal Education

a. Judge Advocates must remain in good standing with the state attorney licensing authority (i.e., bar or court) in at least one state in order to remain certified to perform the duties of an Army Judge Advocate. This individual responsibility may include requirements the licensing state has regarding continuing legal education (CLE).

b. To assist attorneys in understanding and meeting individual state requirements regarding CLE, the Continuing Legal Education Regulators Association (formerly the Organization of Regulatory Administrators) provides an exceptional website at www.clereg.org (formerly www.cleusa.org) that links to all state rules, regulations and requirements for Mandatory Continuing Legal Education.

c. The Judge Advocate General’s Legal Center and School (TJAGLCS) seeks approval of all courses taught in Charlottesville, VA, from states that require prior approval as a condition of granting CLE. For states that require attendance to be reported directly by providers/sponsors, TJAGLCS will report student attendance at those courses. For states that require attorneys to self-report, TJAGLCS provides the appropriate documentation of course attendance directly to students. Attendance at courses taught by TJAGLCS faculty at locations other than Charlottesville, VA, must be self-reported by attendees to the extent and manner provided by their individual state CLE program offices.

d. Regardless of how course attendance is documented, it is the personal responsibility of Judge Advocates to ensure that their attendance at TJAGLCS courses is accounted for and credited to them and that state CLE attendance and reporting requirements are being met. While TJAGLCS endeavors to assist Judge Advocates in meeting their CLE requirements, the ultimate responsibility remains with individual attorneys. This policy is consistent with state licensing authorities and CLE administrators who hold individual attorneys licensed in their jurisdiction responsible for meeting licensing requirements, including attendance at and reporting of any CLE obligation.

e. Please contact the TJAGLCS CLE Administrator at (434) 971-3309 if you have questions or require additional information.

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 47

Current Materials of Interest

1. The Legal Automation Army-Wide Systems XXI—JAGCNet

a. The Legal Automation Army-Wide Systems XXI (LAAWS XXI) operates a knowledge management and information service called JAGCNet primarily dedicated to servicing the Army legal community, but also provides for Department of Defense (DoD) access in some cases. Whether you have Army access or DoD-wide access, all users will be able to download TJAGSA publications that are available through the JAGCNet.

b. Access to the JAGCNet:

(1) Access to JAGCNet is restricted to registered users who have been approved by the LAAWS XXI Office and senior OTJAG staff:

(a) Active U.S. Army JAG Corps personnel;

(b) Reserve and National Guard U.S. Army JAG Corps personnel;

(c) Civilian employees (U.S. Army) JAG Corps personnel;

(d) FLEP students;

(e) Affiliated (U.S. Navy, U.S. Marine Corps, U.S. Air Force, U.S. Coast Guard) DoD personnel assigned to a branch of the JAG Corps; and, other personnel within the DoD legal community.

(2) Requests for exceptions to the access policy should be e-mailed to: [email protected].

c. How to log on to JAGCNet:

(1) Using a Web browser (Internet Explorer 6 or higher recommended) go to the following site: http://jagcnet.army.mil.

(2) Follow the link that reads “Enter JAGCNet.”

(3) If you already have a JAGCNet account, and know your user name and password, select “Enter” from the next menu, then enter your “User Name” and “Password” in the appropriate fields.

(4) If you have a JAGCNet account, but do not know your user name and/or Internet password, contact the LAAWS XXI HelpDesk at [email protected].

(5) If you do not have a JAGCNet account, select “Register” from the JAGCNet Intranet menu.

(6) Follow the link “Request a New Account” at the bottom of the page, and fill out the registration form completely. Allow seventy-two hours for your request to process. Once your request is processed, you will receive an e-mail telling you that your request has been approved or denied.

(7) Once granted access to JAGCNet, follow step (c), above.

2. TJAGSA Publications Available Through the LAAWS XXI JAGCNet

a. The Judge Advocate General’s School, U.S. Army (TJAGSA), Charlottesville, Virginia continues to improve capabilities for faculty and staff. We have installed new computers throughout TJAGSA, all of which are compatible with Microsoft Windows Vista™ Enterprise and Microsoft Office 2007 Professional.

b. The faculty and staff of TJAGSA are available through the Internet. Addresses for TJAGSA personnel are available by e-mail at [email protected] or by accessing the JAGC directory via JAGCNET. If you have any problems, please

48 OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485

contact Information Technology Division Office at (434) 971-3257. Phone numbers and e-mail addresses for TJAGSA personnel are available on TJAGSA Web page at http://www.jagcnet.army.mil/tjagsa. Click on “directory” for the listings.

c. For students who wish to access their office e-mail while attending TJAGSA classes, please ensure that your office e- mail is available via the web. Please bring the address with you when attending classes at TJAGSA. If your office does not have web accessible e-mail, forward your office e-mail to your AKO account. It is mandatory that you have an AKO account. You can sign up for an account at the Army Portal, http://www.jagcnet.army.mil/tjagsa. Click on “directory” for the listings.

d. Personnel desiring to call TJAGSA can dial via DSN 521-7115 or, provided the telephone call is for official business only, use the toll free number, (800) 552-3978; the receptionist will connect you with the appropriate department or directorate. For additional information, please contact the ITD office at (434) 971-3264 or DSN 521-3264.

3. The Army Law Library Service

a. Per Army Regulation 27-1, paragraph 12-11, the Army Law Library Service (ALLS) must be notified before any redistribution of ALLS-purchased law library materials. Posting such a notification in the ALLS FORUM of JAGCNet satisfies this regulatory requirement as well as alerting other librarians that excess materials are available.

b. Point of contact is Mr. Daniel C. Lavering, The Judge Advocate General’s Legal Center and School, U.S. Army, ATTN: ALCS-ADD-LB, 600 Massie Road, Charlottesville, Virginia 22903-1781. Telephone DSN: 521-3306, commercial: (434) 971-3306, or e-mail at [email protected].

OCTOBER 2013 • THE ARMY LAWYER • DA PAM 27-50-485 49

Individual Paid Subscriptions to The Army Lawyer

Attention Individual Subscribers! You should receive your renewal notice around the same time that you receive the issue with ISSUE003. The Government Printing Office offers a paid subscription service to The Army Lawyer. To receive an To avoid a lapse in your subscription, promptly return annual individual paid subscription (12 issues) to The Army the renewal notice with payment to the Superintendent of Lawyer, complete and return the order form below Documents. If your subscription service is discontinued, (photocopies of the order form are acceptable). simply send your mailing label from any issue to the Superintendent of Documents with the proper remittance Renewals of Paid Subscriptions and your subscription will be reinstated.

When your subscription is about to expire, the Inquiries and Change of Address Information Government Printing Office will mail each individual paid subscriber only one renewal notice. You can determine The individual paid subscription service for The Army when your subscription will expire by looking at your Lawyer is handled solely by the Superintendent of mailing label. Check the number that follows “ISSUE” on Documents, not the Editor of The Army Lawyer in the top line of the mailing label as shown in this example: Charlottesville, Virginia. Active Duty, Reserve, and National Guard members receive bulk quantities of The A renewal notice will be sent when this digit is 3. Army Lawyer through official channels and must contact the Editor of The Army Lawyer concerning this service (see inside front cover of the latest issue of The Army Lawyer). ARLAWSMITH212J ISSUE0003 R 1 JOHN SMITH For inquiries and change of address for individual paid 212 MAIN STREET subscriptions, fax your mailing label and new address to the SAN DIEGO, CA 92101 following address:

United States Government Printing Office The numbers following ISSUE indicate how many issues Superintendent of Documents remain in the subscription. For example, ISSUE001 ATTN: Chief, Mail List Branch indicates a subscriber will receive one more issue. When Mail Stop: SSOM the number reads ISSUE000, you have received your last Washington, D.C. 20402 issue unless you renew.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Department of the Army The Judge Advocate General’s Legal Center & School PERIODICALS U.S. Army ATTN: JAGS-ADA-P, Technical Editor Charlottesville, VA 22903-1781

By Order of the Secretary of the Army: RAYMOND T. ODIERNO General, United States Army Chief of Staff Official:

GERALD B. O’KEEFE Administrative Assistant to the Secretary of the Army 1330903